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G.R. No. 135385. December 6, 2000.

* MARIO MANGCAL, FELAY DIAMILING,


ISAGANI CRUZ and CESAR EUROPA, SALOME P. SARZA, FELIFE P. BAGON, SAMMY
petitioners, vs.SECRETARY OF SALNUNGAN, ANTONIO D. EMBA, NORMA
ENVIRONMENT AND NATURAL MAPANSA GONOS, ROMEO SALIGA, SR.,
RESOURCES, SECRETARY OF BUDGET AND JERSON P. GERADA, RENATO T. BAGON, JR.,
MANAGEMENT and CHAIRMAN and SARING MASALONG, SOLEDAD M. GERARDA,
COMMISSIONERS OF THE NATIONAL ELIZABETH L. MENDI, MORANTE S. TIWAN,
COMMISSION ON INDIGENOUS DANILO M. MALUDAO, MINORS MARICEL
PEOPLES,respondents. MALID, represented by her father CORNELIO
x -------------------------------------------------------------- MALID, MARCELINO M. LADRA, represented by
--------- x her father MONICO D. LADRA, JENNYLYN
HON. JUAN M. FLAVIER, HON. PONCIANO MALID, represented by her father TONY MALID,
BENNAGEN, BAYANI ASCARRAGA, EDTAMI ARIEL M. EVANGELISTA, represented by her
MANSAYANGAN, BASILIO WANDAG, mother LINAY BALBUENA, EDWARD M. EMUY,
EVELYN DUNUAN, YAOM TUGAS, ALFREMO SR., SUSAN BOLANIO, OND, PULA BATO
CARPIANO, LIBERATO A. GABIN, B’LAAN TRIBAL FARMER’S ASSOCIATION,
MATERNIDAD M. COLAS, NARCISA M. INTER-PEOPLE’S EXCHANGE, INC. and GREEN
DALUPINES, BAI KIRAM-CONNIE SATURNO, FORUM-WESTERN VISAYAS, intervenor.
BAE MALOMO-BEATRIZ T. ABASALA, DATU x -------------------------------------------------------------------
BALITUNGTUNG-ANTONIO D. ---- x
LUMANDONG, DATU MANTUMUKAW COMMISSION ON HUMAN RIGHTS, intervenor.
TEOFISTO SABASALES, DATU EDUARDO x -------------------------------------------------------------------
BANDA, DATU JOEL UNAD, DATU RAMON ---- x
BAYAAN, TIMUAY JOSE ANOY, TIMUAY IKALAHAN INDIGENOUS PEOPLE and
MACARIO D. SALACAO, TIMUAY EDWIN B. HARIBON FOUNDATION FOR THE
ENDING, DATU SAHAMPONG MALANAW VI, CONSERVATION OF NATURAL RESOURCES,
DATU BEN PENDAO CABIGON, BAI INC., intervenor.
NANAPNAY-LIZA SAWAY, BAI INAY DAYA- Supreme Court; Judgments; Judicial Review; Where the
MELINDA S. REYMUNDO, BAI votes in the Court en banc are equally divided and the necessary
TINANGHAGA HELINITA T. PANGAN, DATU majority is not obtained, the case is redeliberated upon, but if
MAKAPUKAW ADOLINO L. SAWAY, DATU after deliberation, the voting remains the same, the petition is
MAUDAYAW-CRISPEN SAWAY, VICKY dismissed pursuant to Rule 56, Section 7 of the Rules of Civil
MAKAY, LOURDES D. AMOS, GILBERT P. Procedure.—After due deliberation on the petition, the
HOGGANG, TERESA GASPAR, MANUEL S. members of the Court voted as follows: Seven (7)
ONALAN, MIA GRACE L. GIRON, voted to dismiss the petition. Justice Kapunan filed an
ROSEMARIE G. PE, BENITO CARINO, opinion, which the Chief Justice and Justices Bellosillo,
JOSEPH JUDE CARANTES, LYNETTE Quisumbing, and Santiago join, sustaining the validity
CARANTES-VIVAL, LANGLEY SEGUNDO, of the challenged provisions of R.A. 8371. Justice Puno
SATUR S. BUGNAY, CARLING DOMULOT, also filed a separate opinion sustaining all challenged
ANDRES MENDIGORIN, LEOPOLDO provisions of the law with the exception of Section 1,
ABUGAN, VIRGILIO CAYETANO, CONCHITA Part II, Rule III of NCIP Administrative Order No. 1,
G. DESCAGA, LEVY ESTEVES, ODETTE G. series of 1998, the Rules and Regulations Implementing
ESTEVEZ, RODOLFO C. AGUILAR, MAURO the IPRA, and Section 57 of the IPRA which he
VALONES, PEPE H. ATONG, OFELIA T. DAVI, contends should be interpreted as dealing with the
PERFECTO B. GUINOSAO, WALTER N. TIMOL, large-scale exploitation of natural resources and should
MANUEL T. SELEN, OSCAR DALUNHAY, RICO be read in conjunction with Section 2, Article XII of
O. SULATAN, RAFFY MALINDA, ALFREDO the 1987 Constitution. On the other hand, Justice
ABILLANOS, JESSIE ANDILAB, MIRLANDO H. Mendoza voted to dismiss the petition solely on the
MANGKULINTAS, SAMIE SATURNO, ROMEO A. ground that it does not raise a justiciable controversy
LINDAHAY, ROEL S. MANSANGCAGAN, and petitioners do not have standing to question the
PAQUITO S. LIESES, FILIPE G. SAWAY, constitutionality of R.A. 8371. Seven (7) other members
HERMINIA S. SAWAY, JULIUS S. SAWAY, of the Court voted to grant the petition. Justice
LEONARDA SAWAY, JIMMY UGYUB, Panganiban filed a separate opinion expressing the view
SALVADOR TIONGSON, VENANCIO APANG, that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related
MADION MALID, SUKIM MALID, NENENG provisions of R.A. 8371 are unconstitutional. He
MALID, MANGKATADONG AUGUSTO DIANO, reserves judgment on the constitutionality of Sections
JOSEPHINE M. ALBESO, MORENO MALID, 58, 59, 65, and 66 of the law, which he believes must
await the filing of specific cases by those whose rights appropriation and settlement, and excluded the
may have been violated by the IPRA. Justice Vitug also patrimonial property of the government and the friar
filed a separate opinion expressing the view that lands.
Sections 3(a), 7, and 57 of R.A. 8371 are Same; Same; Same; Same; Land Titles; Enacted by the
unconstitutional. Justices Melo, Pardo, Buena, Philippine Commission, Act 496 placed all public and private
Gonzaga-Reyes, and De Leon join in the separate lands in the Philippines under the Torrens system.—Grants of
opinions of Justices Panganiban and Vitug. As the public land were brought under the operation of the
votes were equally divided (7 to 7) and the necessary Torrens system under Act 496, or the Land Registration
majority was not obtained, the case was redeliberated Law of 1903. Enacted by the Philippine Commission,
upon. However, after redeliberation, the voting Act 496 placed all public and private lands in the
remained the same. Accordingly, pursuant to Rule 56, Philippines under the Torrens system. The law is said to
Section 7 of the Rules of Civil Procedure, the petition is be almost a verbatim copy of the Massachusetts Land
DISMISSED. Registration Act of 1898, which, in turn, followed the
principles and procedure of the Torrens system of
PUNO, J.,Separate Opinion: registration formulated by Sir Robert Torrens who
patterned it after the Merchant Shipping Acts in South
National Patrimony; Regalian Doctrine; Natural Australia. The Torrens system requires that the
Resources; Public Lands; The “Regalian Doctrine” or jura regalia government issue an official certificate of title attesting
is a Western legal concept that was first introduced by the to the fact that the person named is the owner of the
Spaniards into the country through the Laws of the Indies and the property described therein, subject to such liens and
Royal Cedulas.—The capacity of the State to own or encumbrances as thereon noted or the law warrants or
acquire property is the state’s power of dominium. This reserves. The certificate of title is indefeasible and
was the foundation for the early Spanish decrees imprescriptible and all claims to the parcel of land are
embracing the feudal theory of jura regalia. The “Regalian quieted upon issuance of said certificate. This system
Doctrine” or jura regalia is a Western legal concept highly facilitates land conveyance and negotiation.
that was first introduced by the Spaniards into the country through
the Laws of the Indies and the Royal Cedulas. Same; Same; Same; Same; The delegates to the 1935
Same; Same; Same; Same; Words and Phrases; The Public Constitutional Convention very well knew that the concept of
Land Act (Act No. 926) operated on the assumption that title to State ownership of land and natural resources was introduced by
public lands in the Philippine Islands remained in the government, the Spaniards, however, they were not certain whether it was
and that the government’s title to public land sprung from the continued and applied by the Americans, so to remove all doubts,
Treaty of Paris and other subsequent treaties between Spain and the Convention approved the provision in the Constitution
the United States; The term “public land” referred to all lands of affirming the Regalian doctrine.—The Regalian doctrine was
the public domain whose title still remained in the government and enshrined in the 1935 Constitution. One of the fixed and
are thrown open to private appropriation and settlement, and dominating objectives of the 1935 Constitutional
excluded the patrimonial property of the government and the friar Convention was the nationalization and conservation
lands.—Act No. 926, the first Public Land Act, was of the natural resources of the country. There was an
passed in pursuance of the provisions of the Philippine overwhelming sentiment in the Convention in favor of
Bill of 1902. The law governed the disposition of lands the principle of state ownership of natural resources
of the public domain. It prescribed rules and regulations and the adoption of the Regalian doctrine. State
for the homesteading, selling, and leasing of portions of ownership of natural resources was seen as a necessary
the public domain of the Philippine Islands, and starting point to secure recognition of the state’s power
prescribed the terms and conditions to enable persons to control their disposition, exploitation, development,
to perfect their titles to public lands in the Islands. It also or utilization. The delegates to the Constitutional
provided for the “issuance of patents to certain native Convention very well knew that the concept of State
settlers upon public lands,” for the establishment of ownership of land and natural resources was
town sites and sale of lots therein, for the completion of introduced by the Spaniards, however, they were not
imperfect titles, and for the cancellation or confirmation certain whether it was continued and applied by the
of Spanish concessions and grants in the Islands.” In Americans. To remove all doubts, the Convention
short, the Public Land Act operated on the assumption approved the provision in the Constitution affirming
that title to public lands in the Philippine Islands the Regalian doctrine.
remained in the government; and that the government’s Same; Indigenous Peoples Rights Act (RA. No.
title to public land sprung from the Treaty of Paris and 8371); Ancestral Domains: Ancestral Lands; Customary
other subsequent treaties between Spain and the United Laws; The Indigenous Peoples Rights Act (IPRA) grants the
States. The term “public land” referred to all lands of the indigenous cultural communities or indigenous peoples
public domain whose title still remained in the (ICCs/IPs) the ownership and possession of their ancestral
government and are thrown open to private domains and ancestral lands, and defines the extent of these lands
and domains, and the ownership given is the indigenous concept of Same; Same; Same; Same; Colonialism tended to divide
ownership under customary law which traces its origin to native and rule an otherwise culturally and historically related populace
title.—Republic Act No. 8371 is entitled “An Act to through a colonial system that exploited both the virtues and vices
Recognize, Protect and Promote the Rights of of the Filipinos.—The Moros and infieles resisted Spanish
Indigenous Cultural Communities/Indigenous Peoples, rule and Christianity. The Moros were driven from
Creating a National Commission on Indigenous Manila and the Visayas to Mindanao; while the infieles,
Peoples, Establishing Implementing Mechanisms, to the hinterlands. The Spaniards did not pursue them
Appropriating Funds Therefor, and for Other into the deep interior. The upland societies were
Purposes.” It is simply known as “The Indigenous Peoples naturally outside the immediate concern of Spanish
Rights Act of 1997” or the IPRA.The IPRA recognizes interest, and the cliffs and forests of the hinterlands were
the existence of the indigenous cultural communities or difficult and inaccessible, allowing the infieles, in effect,
indigenous peoples (ICCs/IPs) as a distinct sector in relative security. Thus, the infieles, which were
Philippine society. It grants these people the ownership and peripheral to colonial administration, were not only able
possession of their ancestral domains and ancestral lands, and to preserve their own culture but also thwarted the
defines the extent of these lands and domains. The ownership Christianization process, separating themselves from the
given is the indigenous concept of ownership under customary law newly evolved Christian community. Their own political,
which traces its origin to native title. economic and social systems were kept constantly alive
Same; Same; Same; Same; Words and and vibrant. The pro-Christian or pro-Indio attitude of
Phrases; Indigenous Cultural Communities or Indigenous Peoples colonialism brought about a generally mutual feeling of
refer to a group of people or homogeneous societies who have suspicion, fear, and hostility between the Christians on
continuously lived as an organized community on communally the one hand and the nonChristians on the other.
bounded and defined territory.—Indigenous Cultural Colonialism tended to divide and rule an otherwise
Communities or Indigenous Peoples refer to a group of culturally and historically related populace through a
people or homogeneous societies who have colonial system that exploited both the virtues and vices
continuously lived as an organized community on of the Filipinos.
communally bounded and defined territory. These Same; Same; Same; Same; Under the 1973 Constitution,
groups of people have actually occupied, possessed and for the first time in Philippine history, the “non-Christian tribes”
utilized their territories under claim of ownership since or the “cultural minorities” were addressed by the highest law of
time immemorial. They share common bonds of the Republic, and they were referred to as “cultural
language, customs, traditions and other distinctive communities.”—It was in the 1973 Constitution that the
cultural traits, or, they, by their resistance to political, State adopted the following provision: “The State shall
social and cultural inroads of colonization, non- consider the customs, traditions, beliefs, and interests of
indigenous religions and cultures, became historically national cultural communities in the formulation and
differentiated from the Filipino majority. ICCs/IPs also implementation of State policies.” For the first time in
include descendants of ICCs/IPs who inhabited the Philippine history, the “non-Christian tribes” or the
country at the time of conquest or colonization, who “cultural minorities” were addressed by the highest law
retain some or all of their own social, economic, cultural of the Republic, and they were referred to as “cultural
and political institutions but who may have been communities.” More importantly this time, their
displaced from their traditional territories or who may “uncivilized” culture was given some recognition and
have resettled outside their ancestral domains. their “customs, traditions, beliefs and interests” were to
Same; Same; Same; Same; The abrogation of the be considered by the State in the formulation and
Filipinos’ ancestral rights in land and the introduction of the implementation of State policies. President Marcos
concept of public domain were the most immediate fundamental abolished the CNI and transferred its functions to the
results of Spanish colonial theory and law.—All lands lost by Presidential Adviser on National Minorities
the old barangays in the process of pueblo organization (PANAMIN). The PANAMIN was tasked to integrate
as well as all lands not assigned to them and the pueblos, the ethnic groups that sought full integration into the
were now declared to be crown lands or realengas, larger community, and at the same time “protect the
belonging to the Spanish king. It was from rights of those who wish to preserve their original
the realengas that land grants were made to non-Filipinos. lifeways beside the larger community.” In short, while
The abrogation of the Filipinos’ ancestral rights in land still adopting the integration policy, the decree
and the introduction of the concept of public domain recognized the right of tribal Filipinos to preserve their
were the most immediate fundamental results of Spanish way of life.
colonial theory and law. The concept that the Spanish Same; Same; Same; Same; The Aquino government
king was the owner of everything of value in the Indies signified a total shift from the policy of integration to one of
or colonies was imposed on the natives, and the natives preservation.—The Aquino government signified a total
were stripped of their ancestral rights to land. shift from the policy of integration to one of
preservation. Invoking her powers under the Freedom
Constitution, President Aquino created the Office of Same; Same; Same; Same; Same; “Ancestral Lands,”
Muslim Affairs, Office for Northern Cultural Explained.—Ancestral lands are lands held by the
Communities and the Office for Southern Cultural ICCs/IPs under the same conditions as ancestral
Communities all under the Office of the President. domains except that these are limited to lands and that
Same; Same; Same; Same; The State, by recognizing the these lands are not merely occupied and possessed but
right of tribal Filipinos to their ancestral lands and domains, has are also utilized by the ICCs/IPs under claims of
effectively upheld their right to live in a culture distinctly their individual or traditional group ownership. These lands
own.—The 1987 Constitution carries at least six (6) include but are not limited to residential lots, rice terraces
provisions which insure the right of tribal Filipinos to or paddies, private forests, swidden farms and tree lots.
preserve their way of life. This Constitution goes further
than the 1973 Constitution by expressly guaranteeing the Same; Same; Same; Same; Land Titles; Customary
rights of tribal Filipinos to their ancestral domains and Laws; The National Commission on Indigenous Peoples (NCIP)
ancestral lands. By recognizing their right to their issues a Certificate of Ancestral Domain Title (CADT) in the
ancestral lands and domains, the State has effectively name of the community concerned, leaving the allocation of lands
upheld their right to live in a culture distinctly their own. within the ancestral domain to any individual or indigenous
corporate (family or clan) claimants to the ICCs/IPs concerned to
Same; Same; Same; Same; Land Titles; Land titles do decide in accordance with customs and traditions while with respect
not exist in the indigenous peoples’ economic and social system— to ancestral lands outside the ancestral domains, the NICP issues
the concept of individual land ownership under the civil law is alien a Certificate of Ancestral Land Title (CALT).—Upon due
to them.—Land titles do not exist in the indigenous application and compliance with the procedure provided
peoples' economic and social system. The concept of under the law and upon finding by the NCIP that the
individual land ownership under the civil law is alien to application is meritorious, the NCIP shall issue a
them. Inherently colonial in origin, our national land Certificate of Ancestral Domain Title (CADT) in the
laws and governmental policies frown upon indigenous name of the community concerned. The allocation
claims to ancestral lands. Communal ownership is of lands within the ancestral domain to any individual or
looked upon as inferior, if not inexistent. indigenous corporate (family or clan) claimants is left to
Same; Same; Same; Same; It was to address the centuries- the ICCs/IPs concerned to decide in accordance with
old neglect of the Philippine indigenous peoples that the Tenth customs and traditions. With respect to ancestral lands
Congress passed and approved the Indigenous Peoples Rights Act outside the ancestral domain, the NCIP issues a
(IPRA) of 1997.—It was to address the centuries-old Certificate of Ancestral Land Title (CALT). CADTs and
neglect of the Philippine indigenous peoples that the CALTs issued under the IPRA shall be registered by the
Tenth Congress of the Philippines, by their joint efforts, NCIP before the Register of Deeds in the place where
passed and approved R.A. No. 8371, the Indigenous the property is situated.
Peoples Rights Act (IPRA) of 1997. The law was a Same; Same; Same; Same; Same; The IPRA
consolidation of two Bills—Senate Bill No. 1728 and categorically declares ancestral lands and domains held by native
House Bill No. 9125. title as never to have been public land—domains and lands held
Same; Same; Same; Same; Words and under native title are, therefore, indisputably presumed to have
Phrases; “Ancestral Domains,” Explained.—Ancestral never been public lands and are private.—Native title refers to
domains are all areas belonging to ICCs/IPs held under ICCs/IPs’ preconquest rights to lands and domains held
a claim of ownership, occupied or possessed by under a claim of private ownership as far back as
ICCs/IPs by themselves or through their ancestors, memory reaches. These lands are deemed never to have
communally or individually since time immemorial, been public lands and are indisputably presumed to have
continuously until the present, except when interrupted been held that way since before the Spanish Conquest.
by war, force majeure or displacement by force, deceit, The rights of ICCs/IPs to their ancestral domains (which
stealth or as a consequence of government projects or also include ancestral lands) by virtue of native title shall
any other voluntary dealings with government and/or be recognized and respected. Formal recognition, when
private individuals or corporations. Ancestral domains solicited by ICCs/IPs concerned, shall be embodied in a
comprise lands, inland waters, coastal areas, and natural resources Certificate of Ancestral Domain Title (CADT), which
therein and includes ancestral lands, forests, pasture, residential, shall recognize the title of the concerned ICCs/IPs over
agricultural, and other lands individually owned whether alienable the territories identified and delineated. Like a Torrens
or not, hunting grounds, burial grounds, worship areas, bodies of title, a CADT is evidence of private ownership of land
water, mineral and other natural resources. They also include by native title. Native title, however, is a right of private
lands which may no longer be exclusively occupied by ownership peculiarly granted to ICCs/IPs over their
ICCs/IPs but from which they traditionally had access ancestral lands and domains. The IPRA categorically
to for their subsistence and traditional activities, declares ancestral lands and domains held by native title
particularly the home ranges of ICCs/IPs who are still as never to have been public land. Domains and lands
nomadic and/or shifting cultivators. held under native title are, therefore, indisputably
presumed to have never been public lands andare community property.—The right of ownership and
private. possession of the ICCs/IPs to their ancestral domains
Same; Same; Same; Same; Same; The concept of native is held under the indigenous concept of ownership.
title first upheld in Cariño v. Insular Government, 41 Phil 935 This concept maintains the view that ancestral domains
(1909), 212 US. 449, 53 L.Ed. 594, and enshrined in the are the ICCs/IPs private but community property. It is
IPRA grants ownership, albeit in limited form, of the land to the private simply because it is not part of the public
ICCs/IPs.—In the Philippines, the concept of native domain. But its private character ends there. The
title first upheld in Cariño and enshrined in the IPRA ancestral domain is owned in common by the
grants ownership, albeit in limited form, of the land to ICCs/IPs and not by one particular person. The IPRA
the ICCs/IPs. Native title presumes that the land is itself provides that areas within the ancestral domains,
private and was never public. Cariño is the only case whether delineated or not, are presumed to be
that specifically and categorically recognizes native title. communally held. These communal rights, however,
The long line of cases citing Cariño did not touch on are not exactly the same as co-ownership rights under
native title and the private character of ancestral the Civil Code. Co-ownership gives any co-owner the
domains and lands. Cariño was cited by the succeeding right to demand partition of the property held in
cases to support the concept of acquisitive prescription common. The Civil Code expressly provides that “[n]o
under the Public Land Act which is a different matter co-owner shall be obliged to remain in the co-
altogether. Under the Public Land Act, land sought to ownership.” Each co-owner may demand at any time
be registered must be public agricultural land. When the the partition of the thing in common, insofar as his
conditions specified in Section 48 [b] of the Public share is concerned. To allow such a right over ancestral
Land Act are complied with, the possessor of the land domains may be destructive not only of customary law
is deemed to have acquired, by operation of law, a right of the community but of the very community itself.
to a grant of the land. The land ceases to be part of the Same; Same; Same; Same; Customary Laws; The
public domain, ipso jure, and is converted to private IPRA, by legislative fiat, introduces a new concept of ownership,
property by the mere lapse or completion of the a concept that has long existed under customary law.—
prescribed statutory period. Following the constitutional mandate that “customary
Same; Same; Same; Same; Same; Ancestral lands and law govern property rights or relations in determining
ancestral domains are not part of the lands of the public domain; the ownership and extent of ancestral domains,” the
they are private and belong to the ICCs/IPs.—Thus, IPRA, by legislative flat, introduces a new concept of
ancestral lands and ancestral domains are not part of ownership. This is a concept that has long existed
the lands of the public domain. They are private and under customary law.
belong to the ICCs/IPs. Section 3 of Article XII on Same; Same; Same; Same; Same; Customary law is a
National Economy and Patrimony of the 1987 primary, not secondary, source of rights under the IPRA and
Constitution classifies lands of the public domain into uniquely applies to ICCs/IPs, and its recognition does not
four categories: (a) agricultural, (b) forest or timber, (c) depend on the absence of a specific provision in the civil law.—
mineral lands, and (d) national parks. Section 5 of the Custom, from which customary law is derived, is also
same Article XII mentions ancestral lands and ancestral recognized under the Civil Code as a source of law.
domains but it does not classify them under any of the Some articles of the Civil Code expressly provide that
said four categories. To classify them as public lands custom should be applied in cases where no codal
under any one of the four classes will render the entire provision is applicable. In other words, in the absence
IPRA law a nullity. The spirit of the IPRA lies in the of any applicable provision in the Civil Code, custom,
distinct concept of ancestral domains and ancestral when duly proven, can define rights and liabilities.
lands. The IPRA addresses the major problem of the Customary law is a primary, not secondary, source of
ICCs/IPs which is loss of land. Land and space are of rights under the IPRA and uniquely applies to
vital concern in terms of sheer survival of the ICCs/IPs. Its recognition does not depend on the
ICCs/IPs. The 1987 Constitution mandates the State to absence of a specific provision in the civil law. The
“protect the rights of indigenous cultural communities indigenous concept of ownership under customary law
to their ancestral lands” and that “Congress provide for is specifically acknowledged and recognized, and
the applicability of customary laws x x x in determining coexists with the civil law concept and the laws on land
the ownership and extent of ancestral domain.” It is the titling and land registration.
recognition of the ICCs/IPs distinct rights of Same; Same; Same; Same; Natural Resources; There is
ownership over their ancestral domains and lands that nothing in IPRA that grants to the ICCs/IPs ownership over the
breathes life into this constitutional mandate. natural resources within their ancestral domains.—Examining
Same; Same; Same; Same; The right of ownership and the IPRA, there is nothing in the law that grants to the
possession of the ICCs/IPs to their ancestral domains is held ICCs/IPs ownership over the natural resources within
under the indigenous concept of ownership which maintains the their ancestral domains. The right of ICCs/IPs in their
view that ancestral domains are the ICCs/IPs private but ancestral domains includes ownership, but this
“ownership” is expressly defined and limited in Section and development of natural resources. Simply stated,
7 (a) as: “Sec. 7. a) Right of ownership—The right to claim the ICCs/IPs’ rights over the natural resources take the
ownership over lands, bodies of water traditionally and form of management or stewardship. For the ICCs/IPs
actually occupied by ICCs/IPs, sacred places, traditional may use these resources and share in the profits of their
hunting and fishing grounds, and all improvements utilization or negotiate the terms for their exploration.
made by them at any time within the domains;” The At the same time, however, the ICCs/IPs must ensure
ICCs/IPs are given the right to claim ownership over that the natural resources within their ancestral
“lands, bodies of water traditionally and actually domains are conserved for future generations and that
occupied by ICCs/IPs, sacred places, traditional hunting the “utilization” of these resources must not harm the
and fishing grounds, and all improvements made by ecology and environment pursuant to national and
them at any time within the domains.” It will be noted customary laws.
that this enumeration does not mention bodies of water not Same; Same; Same; Same; Same; The limited rights of
occupied by the ICCs/IPs, minerals, coal, wildlife, “management and use” in Section 7 (b) of the IPRA must be
flora and fauna in the traditional hunting grounds, fish in taken to contemplate small-scale utilization of natural resources
the traditional fishing grounds, forests or timber in the as distinguished from large-scale utilization.—The limited
sacred places, etc. and all other natural resources found rights of “management and use” in Section 7 (b) must
within the ancestral domains. Indeed, the right of be taken to contemplate small-scale utilization of
ownership under Section 7 (a) does not cover “waters, natural resources as distinguished from large-scale.
minerals, coal, petroleum and other mineral oils, all forces of Small-scale utilization of natural resources is expressly
potential energy, fisheries, forests or timber, wildlife, flora and allowed in the third paragraph of Section 2, Article XII
fauna and all other natural resources” enumerated in Section of the Constitution “in recognition of the plight of
2, Article XII of the 1987 Constitution as belonging to forest dwellers, gold panners, marginal fishermen and
the State. others similarly situated who exploit our natural
Same; Same; Same; Same; Same; The inclusion of resources for their daily sustenance and survival.”
“natural resources” in Section 1, Part II, Rule III of the Section 7 (b) also expressly mandates the ICCs/IPs to
Implementing Rules goes beyond the parameters of Section 7 (b) of manage and conserve these resources and ensure
the law and is contrary to Section 2, Article XII of the 1987 environmental and ecological protection within the
Constitution.—The constitutionality of Section 1, Part II, domains, which duties, by their very nature, necessarily
Rule III of the Implementing Rules was not specifically reject utilization in a large-scale.
and categorically challenged by petitioners. Petitioners Same; Same; Same; Same; Same; The rights granted by
actually assail the constitutionality of the Implementing the IPRA to the ICCs/IPs over the natural resources in their
Rules in general. Nevertheless, to avoid any confusion in ancestral domains merely gives the ICCs/IPs, as owners and
the implementation of the law, it is necessary to declare occupants of the land on which the resources are found, the right to
that the inclusion of “natural resources” in Section 1, the small-scale utilization of these resources, and at the same time,
Part II, Rule III of the Implementing Rules goes beyond a priority in their large-scale development and exploitation.—The
the parameters of Section 7 (b) of the law and is contrary rights granted by the IPRA to the ICCs/IPs over the
to Section 2, Article XII of the 1987 Constitution. natural resources in their ancestral domains merely gives
Same; Same; Same; Same; Same; The right to negotiate the ICCs/IPs, as owners and occupants of the land on
the terms and conditions over the natural resources covers only which the resources are found, the right to the small-
their exploration which must be for the purpose of ensuring scale utilization of these resources, and at the same time,
ecological and environmental protection of, and conservation a priority in their large-scale development and
measures in the ancestral domain—it does not extend to the exploitation. Section 57 does not mandate the State to
exploitation and development of natural resources.— automatically give priority to the ICCs/IPs. The State
Ownership over the natural resources in the ancestral has several options and it is within its discretion to
domains remains with the State and the ICCs/IPs are choose which option to pursue. Moreover, there is
merely granted the right to “manage and conserve” nothing in the law that gives the ICCs/IPs the right to
them for future generations, “benefit and share” the solely undertake the large-scale development of the
profits from their allocation and utilization, and natural resources within their domains. The ICCs/IPs
“negotiate the terms and conditions for their must undertake such endeavour always under State
exploration” for the purpose of “ensuring ecological supervision or control. This indicates that the State does
and environmental protection and conservation not lose control and ownership over the resources even
measures.” It must be noted that the right to negotiate in their exploitation. Sections 7 (b) and 57 of the law
the terms and conditions over the natural resources simply give due respect to the ICCs/IPs who, as actual
covers only their exploration which must be for the occupants of the land where the natural resources lie,
purpose of ensuring ecological and environmental have traditionally utilized these resources for their
protection of, and conservation measures in the subsistence and survival.
ancestral domain. It does not extend to the exploitation
Same; Same; Same; Same; Ecology and taxpayers, to raise constitutional issues that affect them.
Environment; Indigenous rights came as a result of both human This Court thus did so in a case that involves the
rights and environmental protection, and have become a part of conservation of our forests for ecological needs. Until
today’s priorities for the international agenda.—Presently, there an exact balance is struck, the Court must accept an
is a growing concern for indigenous rights in the eclectic notion that can free Itself from the bondage of
international scene. This came as a result of the increased legal nicety and hold trenchant technicalities
publicity focused on the continuing disrespect for subordinate to what may be considered to be of
indigenous human rights and the destruction of the overriding concern.
indigenous peoples’ environment, together with the National Patrimony; Regalian Doctrine; Natural
national governments’ inability to deal with the situation. Resources; Indigenous Peoples Rights Act (IPRA); The
Indigenous rights came as a result of both human rights provisions Sections 7 and 57 of the IPRA, in their totality, are,
and environmental protection, and have become a part in my view, beyond the context of the fundamental law and
of today’s priorities for the international agenda. virtually amount to an undue delegation, if not an unacceptable
Same; Same; Same; Same; Customary Laws; If the abdication, of State authority over a significant area of the
evolution of the Filipino people into a democratic society is to truly country and its patrimony.—IPRA effectively withdraws
proceed democratically, i.e., if the Filipinos as a whole are to from the public domain the so-called ancestral domains
participate fully in the task of continuing democratization, it is the covering literally millions of hectares. The notion of
Supreme Court’s duty to acknowledge the presence of indigenous community property would comprehend not only
and customary laws in the country and affirm their co-existence matters of proprietary interest but also some forms of
with the land laws in our national legal system.—The struggle self-governance over the carved-out territory. This
of the Filipinos throughout colonial history had been concept is elaborated in Section 7 of the law which
plagued by ethnic and religious differences. These states that the “rights of ownership and possession of
differences were carried over and magnified by the ICCs/IPs to their ancestral domains shall be
Philippine government through the imposition of a recognized and protected,” subsumed under which
national legal order that is mostly foreign in origin or would encompass the right of ownership (paragraph a);
derivation. Largely unpopulist, the present legal system the right to develop, control and use lands and natural
has resulted in the alienation of a large sector of society, resources, including “the right to negotiate the terms
specifically, the indigenous peoples. The histories and and conditions for the exploration of natural resources
cultures of the indigenes are relevant to the evolution of in the areas for the purpose of ensuring ecological,
Philippine culture and are vital to the understanding of environmental protection and the conservation
contemporary problems. It is through the IPRA that an measures, pursuant to national and customary laws;”
attempt was made by our legislators to understand (par. b); the right to stay in the territories (par. c); the
Filipino society not in terms of myths and biases but right to return to their abandoned lands. In case of
through common experiences in the course of history. displacement (par. d); the right to regulate entry of
The Philippines became a democracy a centennial ago migrants (par. e); the right to claim parts of ancestral
and the decolonization process still continues. If the domains previously reserved (par. g); and the right to
evolution of the Filipino people into a democratic resolve land conflicts. In accordance primarily with
society is to truly proceed democratically, i.e., if the customary law (par. h). Concurrently, Section 57 states
Filipinos as a whole are to participate fully in the task of that ICCs/IPs shall be given “priority rights in the
continuing democratization, it is this Court’s duty to harvesting, extraction, development or exploitation of
acknowledge the presence of indigenous and customary any natural resources within the ancestral domains.”
laws in the country and affirm their co-existence with the These provisions of IPRA, in their totality, are, in my
land laws in our national legal system. view, beyond the context of the fundamental law and
virtually amount to an undue delegation, if not an
unacceptable abdication, of State authority over a
VITUG, J., Separate Opinion: significant area of the country and its patrimony.
Same; Same; Same; The decision of the United States
Supreme Court; Judicial Review; Procedural Rules and Supreme Court in Cariño v. Insular Government, 41 Phil 935
Technicalities; Until an exact balance is struck, the Court must (1910), holding that a parcel of land held since time immemorial
accept an eclectic notion that can free itself from the bondage of by individuals under a claim of private ownership is presumed
legal nicety and hold trenchant technicalities subordinate to what never to have been public land and cited to downgrade the
may be considered to be of overriding concern.—Nevertheless, application of the regalian doctrine, cannot override the collective
where a most compelling reason exists, such as when will of the people expressed in the Constitution.—The decision
the matter is of transcendental importance and of the United States Supreme Court in Cariño vs.
paramount interest to the nation, the Court must take Insular Government, holding that a parcel of land held
the liberal approach that recognizes the legal standing since time immemorial by individuals under a claim of
of nontraditional plaintiffs, such as citizens and private ownership is presumed never to have been
public land and cited to downgrade the application of guided by a working definition in the 1986 Report of UN
the regalian doctrine, cannot override the collective will Special Rapporteur Martinez Cobo.
of the people expressed in the Constitution. It is in Same; Same; In Philippine constitutional law, the term
them that sovereignty resides and from them that all “indigenous peoples” pertains to those groups of Filipinos who have
government authority emanates. It is not then for a retained a high degree of continuity from pre-Conquest culture.—
court ruling or any piece of legislation to be conformed In Philippine constitutional law, the term “indigenous
to by the fundamental law, but it is for the former to peoples” pertains to those groups of Fili-pinos who have
adapt to the latter, and it is the sovereign act that must, retained a high degree of continuity from pre-Conquest
between them, stand inviolate. culture. Philippine legal history, however, has not been
Customary Laws; I do not see the statement in Section 5 kind to the indigenous peoples, characterized them as
of Article XII of the Constitution allowing Congress to provide “uncivilized,” “backward people,” with “barbarous
“for the applicability of customary laws governing property rights practices” and “a low order of intelligence.”
or relations in determining the ownership and extent of ancestral Same; Same; The extant Philippine national culture is the
domains” as saying that Congress may enact a law that would culture of the majority, its indigenous roots were replaced by foreign
simply express that “customary laws shall govern” and end it cultural elements that are decidedly pronounced, if not dominant.—
there.—The second paragraph of Section 5 of Article Though Filipinos today are essentially of the same stock
XII of the Constitution allows Congress to provide as the indigenous peoples, our national culture exhibits
“for the applicability of customary laws governing only the last vestiges of this native culture. Centuries of
property rights or relations in determining the colonial rule and neocolonial domination have created a
ownership and extent of ancestral domains.” I do not discernible distinction between the cultural majority and
see this statement as saying that Congress may enact a the group of cultural minorities. The extant Philippine
law that would simply express that “customary laws national culture is the culture of the majority; its
shall govern” and end it there. Had it been so, the indigenous roots were replaced by foreign cultural
Constitution could have itself easily provided without elements that are decidedly pronounced, if not
having to still commission Congress to do it. dominant. While the culture of the majority reoriented
Same; Customary laws, when specifically enacted to become itself to Western influence, the culture of the minorities
part of statutory law, must first undergo that publication to render has retained its essentially native character.
them correspondingly binding and effective as such.—The
constitutional aim, it seems to me, is to get Congress to Supreme Court; Judicial Review; When the State
look closely into the customary laws and, with specificity machinery is set into motion to implement an alleged
and by proper recitals, to hew them to, and make them unconstitutional statute, the Supreme Court possesses sufficient
part of, the stream of laws. The “due process clause,” as authority to resolve and prevent imminent injury and violation of
I so understand it in Tañada vs. Tuvera would require an the constitutional process.—In the case at bar, there exists a
apt publication of a legislative enactment before it is live controversy involving a clash of legal rights. A law
permitted to take force and effect. So, also customary has been enacted, and the Implementing Rules and
laws, when specifically enacted to become part of Regulations approved. Money has been appropriated
statutory law, must first undergo that publication to and the government agencies concerned have been
render them correspondingly binding and effective as directed to implement the statute. It cannot be
such. successfully maintained that we should await the adverse
consequences of the law in order to consider the
KAPUNAN, J., Separate Opinion: controversy actual and ripe for judicial resolution. It is
precisely the contention of the petitioners that the law,
Indigenous Peoples Rights Act (IPRA); Words and on its face, constitutes an unconstitutional abdication of
Phrases; International Law; In international law, the definition of State ownership over lands of the public domain and
what constitutes “indigenous peoples” attains some degree of other natural resources. Moreover, when the State
controversy.—The term “indigenous” traces its origin to machinery is set into motion to implement an alleged
the Old Latin word indu, meaning “within.” In the sense unconstitutional statute, this Court possesses sufficient
the term has come to be used, it is nearer in meaning to authority to resolve and prevent imminent injury and
the Latin word indigenus, which means “native.” violation of the constitutional process.
“Indigenous” refers to that which originated or has been Same; Same; Parties; Locus Standi; Taxpayer’s
produced naturally in a particular land, and has not been Suits; Citizen’s Suits;In a sense, all citizen’s and taxpayer’s suits
introduced from the outside. In international law, the are efforts to air generalized grievances about the conduct of
definition of what constitutes “indigenous peoples” government and the allocation of power.—In addition to the
attains some degree of controversy. No definition of the existence of an actual case or controversy, a person who
term “indigenous peoples” has been adopted by the assails the validity of a statute must have a personal and
United Nations (UN), although UN practice has been substantial interest in the case, such that, he has
sustained, or will sustain, a direct injury as a result of its
enforcement. Evidently, the rights asserted by setting forth the standards and guidelines in
petitioners as citizens and taxpayers are held in common determining whether a particular area is to be
by all the citizens, the violation of which may result only considered as part of and within the ancestral domains.
in a “generalized grievance.” Yet, in a sense, all citizen’s In other words, Section 3(a) serves only as a yardstick
and taxpayer’s suits are efforts to air generalized which points out what properties are within the
grievances about the conduct of government and the ancestral domains. It does not confer or recognize any
allocation of power. right of ownership over the natural resources to the
Same; Same; Same; Same; Same; Same; National indigenous peoples. Its purpose is definitional and not
Patrimony; The preservation of the integrity and inviolability of the declarative of a right or title. The specification of what
national patrimony is a proper subject of a citizen’s suit.— areas belong to the ancestral domains is, to our mind,
Petitioners, as citizens, possess the “public right” to important to ensure that no unnecessary encroachment
ensure that the national patrimony is not alienated and on private properties outside the ancestral domains will
diminished in violation of the Constitution. Since the result during the delineation process. The mere fact
government, as the guardian of the national patrimony, that Section 3(a) defines ancestral domains to include
holds it for the benefit of all Filipinos without distinction the natural resources found therein does not ipso
as to ethnicity, it follows that a citizen has sufficient facto convert the character of such natural resources as
interest to maintain a suit to ensure that any grant of private property of the indigenous peoples. Similarly,
concessions covering the national economy and Section 5 in relation to Section 3(a) cannot be
patrimony strictly complies with constitutional construed as a source of ownership rights of
requirements. Thus, the preservation of the integrity and indigenous people over the natural resources simply
inviolability of the national patrimony is a proper subject because it recognizes ancestral domains as their
of a citizen’s suit. “private but community property.”
National Patrimony; Regalian Doctrine; The theory of Same; Same; Same; Words and Phrases; The phrase
jura regalia was nothing more than a natural fruit of conquest; The “private but community property” is merely descriptive of the
Regalian theory does not negate native title to lands held in private indigenous peoples’ concept of ownership as distinguished from
ownership since time immemorial.—Generally, under the that provided in the Civil Code.—The phrase “private but
concept of jura regalia, private title to land must be traced community property” is merely descriptive of the
to some grant, express or implied, from the Spanish indigenous peoples’ concept of ownership as
Crown or its successors, the American Colonial distinguished from that provided in the Civil Code. In
government, and thereafter, the Philippine Republic. Civil Law, “ownership” is the “independent and general
The belief that the Spanish Crown is the origin of all land power of a person over a thing for purposes recognized
titles in the Philippines has persisted because title to land by law and within the limits established thereby.” The
must emanate from some source for it cannot issue forth civil law concept of ownership has the following
from nowhere. In its broad sense, the term “jura regalia” attributes: jus utendi or the right to receive from the
refers to royal rights, or those rights which the King has thing that which it produces, jus abutendi or the right to
by virtue of his prerogatives. In Spanish law, it refers to consume the thing by its use, jus disponendi or the power
a right which the sovereign has over anything in which a to alienate, encumber, transform and even destroy that
subject has a right of property or propriedad. These were which is owned, and jus vindicandi or the right to exclude
rights enjoyed during feudal times by the king as the other persons from the possession the thing owned. In
sovereign. The theory of the feudal system was that title contrast, the indigenous peoples’ concept of ownership
to all lands was originally held by the King, and while the emphasizes the importance of communal or group
use of lands was granted out to others who were ownership. By virtue of the communal character of
permitted to hold them under certain conditions, the ownership, the property held in common “cannot be
King theoretically retained the title. By fiction of law, the sold, disposed or destroyed” because it was meant to
King was regarded as the original proprietor of all lands, benefit the whole indigenous community and not
and the true and only source of title, and from him all merelythe individual member.
lands were held. The theory of jura regalia was therefore Same; Same; Same; The concept of native title to natural
nothing more than a natural fruit of conquest. The resources, unlike native title to land, has not been recognized in
Regalian theory, however, does not negate native title to the Philippines.—Finally, the concept of native title to
lands held in private ownership since time immemorial. natural resources, unlike native title to land, has not
Same; Same; Natural Resources; The mere fact that been recognized in the Philippines. NCIP and Flavier,
Section 3(a) of IPRA defines ancestral domains to include the et al. invoke the case of Reavies v. Fianza in support of
natural resources, found therein does not ipso facto convert the their thesis that native title to natural resources has
character of such natural resources as private property of the been upheld in this jurisdiction. They insist that “it is
indigenous people.—Section 3(a) merely defines the possible for rights over natural resources to vest on a
coverage of ancestral domains, and describes the private (as opposed to a public) holder if these were
extent, limit and composition of ancestral domains by held prior to the 1935 Constitution.” However, a
judicious examination of Reavies reveals that, contrary prohibition against any and all forms of utilization of
to the position of NCIP and Flavier, et al., the Court natural resources without the State’s direct participation.
did not recognize native title to natural resources. Same; Same; Same; Land Titles; By the enactment of
Rather, it merely upheld the right of the indigenous IPRA, Congress did not purport to annul any and all Torrens
peoples to claim ownership of minerals under the titles within areas claimed as ancestral lands or ancestral
Philippine Bill of 1902. domains.—Further, by the enactment of IPRA, Congress
Same; Same; Same; Upon the certification of certain areas did not purport to annul any and all Torrens titles within
as ancestral domain following the procedure outlined in Sections 51 areas claimed as ancestral lands or ancestral domains.
to 53 of the IPRA, jurisdiction of the government agency or agencies The statute imposes strict procedural requirements for
concerned over lands forming part thereof ceases but the jurisdiction the proper delineation of ancestral lands and ancestral
of government agencies over the natural resources within the domains as safeguards against the fraudulent deprivation
ancestral domains does not terminate by such certification because of any landowner of his land, whether or not he is
said agencies are mandated under existing laws to administer the member of an indigenous cultural community. In all
natural resources for the State, which is the owner thereof.— proceedings for delineation of ancestral lands and
Undoubtedly, certain areas that are claimed as ancestral ancestral domains, the Director of Lands shall appear to
domains may still be under the administration of other represent the interest of the Republic of the Philippines.
agencies of the Government, such as the Department of With regard to ancestral domains, the following procedure
Agrarian Reform, with respect to agricultural lands, and is mandatory: first, petition by an indigenous cultural
the Department of Environment and Natural Resources community, or motu proprio by the NCIP; second,
with respect to timber, forest and mineral lands. Upon investigation and census by the Ancestral domains
the certification of these areas as ancestral domain Office (“ADO”) of the NCIP; third, preliminary report
following the procedure outlined in Sections 51 to 53 of by the ADO; fourth, posting and publication;
the IPRA, jurisdiction of the government agency or and lastly, evaluation by the NCIP upon submission of
agencies concerned over lands forming part thereof the final report of the ADO. With regard to ancestral
ceases. Nevertheless, the jurisdiction of government lands, unless such lands are within an ancestral domain,
agencies over the natural resources within the ancestral the statute imposes the following procedural
domains does not terminate by such certification requirements: first, application; second, posting and
because said agencies are mandated under existing laws publication; third,investigation and inspection by the
to administer the natural resources for the State, which ADO; fourth, delineation; lastly,evaluation by the NCIP
is the owner thereof. To construe Section 52[i] as upon submission of a report by the ADO. Hence, we
divesting the State, through the government agencies cannot sustain the arguments of the petitioners that the
concerned, of jurisdiction over the natural resources law affords no protection to those who are not
within the ancestral domains would be inconsistent with indigenous peoples.
the established doctrine that all natural resources are Indigenous Peoples; Due Process; The fact that the NCIP
owned by the State. is composed of members of the indigenous peoples does not mean
Same; Same; Same; Clearly, Section 2, Article XII, when that it (the NCIP) is incapable, or will appear to be so incapable,
interpreted in view of the pro-Filipino, pro-poor philosophy of our of delivering justice to the non-indigenous peoples.—The fact that
fundamental law, and in harmony with the other provisions of the the NCIP is composed of members of the indigenous
Constitution rather as a sequestered pronouncement, cannot be peoples does not mean that it (the NCIP) is incapable,
construed as a prohibition against any and all forms of utilization or will appear to be so incapable, of delivering justice to
of natural resources without the State’s direct participation.—In the non-indigenous peoples. A person’s possession of
addition to the means of exploration, development and the trait of impartiality desirable of a judge has nothing
utilization of the country’s natural resources stated in to do with his or her ethnic roots. In this wise, the
paragraph 1, Section 2 of Article XII, the Constitution indigenous peoples are as capable of rendering justice as
itself states in the third paragraph of the same section the non-indigenous peoples for, certainly, the latter have
that Congress may, by law, allow small-scale utilization of no monopoly of the concept of justice.
natural resources by its citizens. Further, Section 6, Article Same; Customary Laws; The use of customary laws under
XIII, directs the State, in the disposition and utilization of the IPRA is not absolute, for the law speaks merely of primacy of
natural resources, to apply the principles of agrarian use.—Anent the use of customary laws in determining
reform or stewardship. Similarly, Section 7, Article XIII the ownership and extent of ancestral domains, suffice it
mandates the State to protect the rights of subsistence to say that such is allowed under paragraph 2, Section 5
fishermen to the preferential use of marine and fishing of Article XII of the Constitution. Said provision states,
resources. Clearly, Section 2, Article XII, when “The Congress may provide for the applicability of
interpreted in view of the pro-Filipino, pro-poor customary laws governing property rights and relations
philosophy of our fundamental law, and in harmony in determining the ownership and extent of the ancestral
with the other provisions of the Constitution rather as a domains.” Notably, the use of customary laws under
sequestered pronouncement, cannot be construed as a IPRA is not absolute, for the law speaks merely
of primacy of use. The IPRA prescribes the application of such, is still subject to the President’s power of control
such customary laws where these present a workable and supervision granted under Section 17, Article VII
solution acceptable to the parties, who are members of of the Constitution with respect to its performance of
the same indigenous group. This interpretation is administrative functions, such as the following: (1) the
supported by Section 1, Rule IX of the Implementing NCIP must secure the President’s approval in obtaining
Rules. loans to finance its projects; (2) it must obtain the
Same; Same; When one of the parties to a dispute is a non- President’s approval for any negotiation for funds and
member of an indigenous group, or when the indigenous peoples for the acceptance of gifts and/or properties in
involved belong to different groups, the application of customary law whatever form and from whatever source; (3) the
is not required.—The application of customary law NCIP shall submit annual reports of its operations and
is limited to disputes concerning property rights or relations in achievements to the President, and advise the latter on
determining the ownership and extent of the ancestral all matters relating to the indigenous peoples; and (4) it
domains, where all the parties involved are members of shall exercise such other powers as may be directed by
indigenous peoples, specifically, of the same indigenous the President. The President is also given the power to
group. It therefore follows that when one of the parties appoint the Commissioners of the NCIP as well as to
to a dispute is a non-member of an indigenous group, or remove them from office for cause motu proprio or upon
when the indigenous peoples involved belong to the recommendation of any indigenous community.
different groups, the application of customary law is not
required. MENDOZA, J., Separate Opinion:
Administrative Law; Presidency; Power of
Control; Words and Phrases; An “independent agency” is an Courts; Judicial Review; The judicial power vested in the
administrative body independent of the executive branch or one not Supreme Court by Art. VIII, §1 extends only to cases and
subject to a superior head of department, as distinguished from a controversies for the determination of such proceedings as are
“subordinate agency” or an administrative body whose action is established by law for the protection or enforcement of rights, or
subject to administrative review or revision.—The NCIP has the prevention, redress or punishment of wrongs.—The judicial
been designated under IPRA as the primary government power vested in this Court by Art. VIII, §1 extends
agency responsible for the formulation and only to cases and controversies for the determination
implementation of policies, plans and programs to of such proceedings as are established by law for the
promote and protect the rights and well being of the protection or enforcement of rights, or the prevention,
indigenous peoples and the recognition of their ancestral redress or punishment of wrongs. In this case, the
domain as well as their rights thereto. It has been granted purpose of the suit is not to enforce a property right of
administrative, quasi-legislative and quasi-judicial petitioners against the government and other
powers to carry out its mandate. The diverse nature of respondents or to demand compensation for injuries
the NCIP’s functions renders it impossible to place said suffered by them as a result of the enforcement of the
agency entirely under the control of only one branch of law, but only to settle what they believe to be the
government and this, apparently, is the reason for its doubtful character of the law in question. Any
characterization by Congress as an independent agency. judgment that we render in this case will thus not
An “independent agency” is defined as an administrative conclude or bind real parties in the future, when actual
body independent of the executive branch or one not litigation will bring to the Court the question of the
subject to a superior head of department, as constitutionality of such legislation. Such judgment
distinguished from a “subordinate agency” or an cannot be executed as it amounts to no more than an
administrative body whose action is subject to expression of opinion upon the validity of the
administrative review or revision. provisions of the law in question.
Same; Same; Same; The NCIP, although independent to Same; Same; The statement that the judicial power includes
a certain degree, was placed by Congress “under the office of the the duty to determine whether there has been a grave abuse of
President” and, as such, is still subject to the President’s power to discretion was inserted in Art. VIII, §1 not really to give the
control and supervision with respect to its performance of judiciary a roving commission to right any wrong it perceives but to
administrative functions.—That Congress did not intend to preclude courts from invoking the political question doctrine in
place the NCIP under the control of the President in all order to evade the decision of certain cases even where violations of
instances is evident in the IPRA itself, which provides civil liberties are alleged.—I do not conceive it to be the
that the decisions of the NCIP in the exercise of its function of this Court under Art. VIII, §1 of the
quasi-judicial functions shall be appealable to the Court Constitution to determine in the abstract whether or not
of Appeals, like those of the National Labor Relations there has been a grave abuse of discretion amounting to
Commission (NLRC) and the Securities and Exchange lack or excess of jurisdiction on the part of the legislative
Commission (SEC). Nevertheless, the NCIP, although and executive departments in enacting the IPRA. Our
independent to a certain degree, was placed by jurisdiction is confined to cases or controversies. No one
Congress “under the office of the President” and, as reading Art. VIII, §5 can fail to note that, in enumerating
the matters placed in the keeping of this Court, it judgment of a coequal department of government
uniformly begins with the phrase “all cases . . .” The whose acts, unless shown to be clearly repugnant to the
statement that the judicial power includes the duty to fundamental law, are presumed to be valid. The
determine whether there has been a grave abuse of polestar of constitutional adjudication was set forth by
discretion was inserted in Art. VIII, §1 not really to give Justice Laurel in the Angara case when he said that “this
the judiciary a roving commission to right any wrong it power of judicial review is limited to actual cases and
perceives but to preclude courts from invoking the controversies to be exercised after full opportunity of
political question doctrine in order to evade the decision argument by the parties, and limited further to the
of certain cases even where violations of civil liberties constitutional question raised or the very lis mota,
are alleged. presented.” For the exercise of this power is legitimate
Same; Same; The judicial power cannot be extended to only in the last resort; and as a necessity in the
matters which do not involve actual cases or controversies without determination of real, earnest, and vital controversy
upsetting the balance of power among the three branches of the between individuals. Until, therefore, an actual case is
government and erecting, as it were, the judiciary, particularly the brought to test the constitutionality of the IPRA, the
Supreme Court, as a third branch of Congress, with power not only presumption of constitutionality, which inheres in every
to invalidate statutes but even to rewrite them.—Indeed, the statute, must be accorded to it.
judicial power cannot be extended to matters which do
not involve actual cases or controversies without PANGANIBAN, J., Separate Opinion (Concurring and
upsetting the balance of power among the three Dissenting):
branches of the government and erecting, as it were, the
judiciary, particularly the Supreme Court, as a third National Patrimony; Ancestral Domains; Ancestral
branch of Congress, with power not only to invalidate Lands; I respectfully reject the contention that “ancestral lands
statutes but even to rewrite them. Yet that is exactly what and ancestral domains are not public lands and have never been
we would be permitting in this case were we to assume owned by the State.”—It recognizes or, worse, grants
jurisdiction and decide wholesale the constitutional rights of ownership over lands of the public domain,
validity of the IPRA contrary to the established rule that waters, x x x and other natural resources” which, under
a party can question the validity of a statute only if, as Section 2, Article XII of the Constitution, “are owned
applied to him, it is unconstitutional. Here the IPRA is by the State” and “shall not be alien-ated.” I
sought to be declared void on its face. respectfully reject the contention that “ancestral lands
Same; Same; Freedom of Expression; “Chilling Effect” and ancestral domains are not public lands and have
Syndrome; The only instance where a facial challenge to a statute never been owned by the State.” Such sweeping statement
is allowed is when it operates in the area of freedom of places substantial portions of Philippine territory outside the scope
expression—invalidation of the statute “on its face” of the Philippine Constitution and beyond the collective reach of
rather than “as applied” is permitted in the interest of the Filipino people. As will be discussed later, these real
preventing a “chilling” effect on freedom of properties constitute a third of the entire Philippine territory; and
expression.—The only instance where a facial challenge the resources, 80 percent of the nation’s natural wealth.
to a statute is allowed is when it operates in the area of Same; Same; Same; I cannot agree to legitimize perpetual
freedom of expression. In such instance, the inequality of access to the nation’s wealth or to stamp the Court’s
overbreadth doctrine permits a party to challenge the imprimatur on a law that offends and degrades the repository of
validity of a statute even though as applied to him it is the very authority of the Supreme Court—the Constitution of the
not unconstitutional but it might be if applied to others Philippines.—Consistent with the social justice principle
not before the Court whose activities are of giving more in law to those who have less in life,
constitutionally protected. Invalidation of the statute Congress in its wisdom may grant preferences and
“on its face” rather than “as applied” is permitted in prerogatives to our marginalized brothers and sisters,
the interest of preventing a “chilling” effect on freedom subject to the irreducible caveat that the Constitution
of expression. But in other cases, even if it is found that must be respected. I personally believe in according
a provision of a statute is unconstitutional, courts will every benefit to the poor, the oppressed and the
decree only partial invalidity unless the invalid portion disadvantaged, in order to empower them
is so far inseparable from the rest of the statute that a to equally enjoy the blessings of nationhood. I cannot,
declaration of partial invalidity is not possible. however, agree to legitimize perpetual inequality of access to the
Same; Same; To decline the exercise of jurisdiction where nation’s wealth or to stamp the Court’s imprimatur on a law that
there is no genuine controversy is not to show timidity but respect offends and degrades the repository of the very authority of this
for the judgment of a coequal department of government whose Court—the Constitution of the Philippines.
acts, unless shown to be clearly repugnant to the fundamental law, Same; Same; Same; Though laudable and well-meaning,
are presumed to be valid.—To decline, therefore, the IPRA, however, has provisions that run directly afoul of our
exercise of jurisdiction where there is no genuine fundamental law from which it claims origin and authority.—
controversy is not to show timidity but respect for the RA 8371, which defines the rights of indigenous
cultural communities and indigenous peoples, and further states that ICCs/IPs own these ancestral domains,
admittedly professes a laudable intent. It was primarily then it means that ICCs/IPs can own natural resources.—
enacted pursuant to the state policy enshrined in our Respondents insist, and the ponencia agrees, that
Constitution to “recognize and promote the rights of paragraphs (a) and (b) of Sections 3 are merely
indigenous cultural communities within the framework definitions and should not be construed independently
of national unity and development.” Though laudable of the other provisions of the law. But, precisely, a
and well-meaning, this statute, however, has provisions definition is “a statement of the meaning of a word or
that run directly afoul of our fundamental law from word group.” It determines or settles the nature of the
which it claims origin and authority. More specifically, thing or person defined. Thus, after defining a term as
Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and other encompassing several items, one cannot thereafter say
related provisions contravene the Regalian Doctrine— that the same term should be interpreted as excluding
the basic foundation of the State’s property regime. one or more of the enumerated items in its definition.
Vested Rights; Property; Ownership; Because of the For that would be misleading the people who would be
State’s implementation of policies considered to be for the common bound by the law. In other words, since RA 8371
good, all those concerned have to give up, under certain conditions, defines ancestral domains as including the natural
even vested rights of ownership.—I submit, however, that all resources found therein and further states that
Filipinos, whether indigenous or not, are subject to the ICCs/IPs own these ancestral domains, then it means that
Constitution. Indeed, no one is exempt from its ICCs/IPs can own natural resources.
allencompassing provisions. Unlike the 1935 Charter, Same; Same; Same; Congress, through IPRA, has in effect
which was subject to “any existing right, grant, lease or abdicated in favor of a minority group the State’s power of
concession,” the 1973 and the 1987 Constitutions ownership and full control over a substantial part of the national
spoke in absolute terms. Because of the State’s patrimony, in contravention of our most fundamental law.—But
implementation of policies considered to be for the again, RA 8371 relinquishes this constitutional power
common good, all those concerned have to give up, of full control in favor of ICCs/IPs, insofar as natural
under certain conditions, even vested rights of resources found within their territories are concerned.
ownership. Pursuant to their rights of ownership and possession,
National Patrimony; Ancestral Domains; Ancestral they may develop and manage the natural resources,
Lands; Four hundred years of Philippine political history cannot benefit from and share in the profits from the allocation
be set aside or ignored by IPRA, however well-intentioned it may and the utilization thereof. And they may exercise such
be.—Verily, as petitioners undauntedly point out, four right without any time limit, unlike non-ICCs/IPs who
hundred years of Philippine political history cannot be may do so only for a period not exceeding 25 years,
set aside or ignored by IPRA, however well-intentioned renewable for a like period. Consistent with the
it may be. The perceived lack of understanding of the Constitution, the rights of ICCs/IPs to exploit, develop
cultural minorities cannot be remedied by conceding and utilize natural resources must also be limited to such
the nation’s resources to their exclusive advantage. period. In addition, ICCs/IPs are given the right to
They cannot be more privileged simply because they negotiate directly the terms and conditions for the
have chosen to ignore state laws. For having chosen exploration of natural resources, a right vested by the
not to be enfolded by statutes on perfecting land titles, Constitution only in the State. Congress, through IPRA,
ICCs/IPs cannot now maintain their ownership of has in effect abdicated in favor of a minority group the
lands and domains by insisting on their concept of State’s power of ownership and full control over a
“native title” thereto. It would be plain injustice to the substantial part of the national patrimony, in
majority of Filipinos who have abided by the law and, contravention of our most fundamental law.
consequently, deserve equal opportunity to enjoy the Same; Same; Same; In giving ICCs/IPs rights in
country’s resources. derogation of our fundamental law, Congress is effectively
Same; Same; Same; Regalian Doctrine; The concerted mandating “reverse discrimination.”—Indigenous peoples
effort to malign the Regalian Doctrine as a vestige of the colonial may have long been marginalized in Philippine politics
past must fail—our Constitution vests the ownership of natural and society. This does not, however, give Congress any
resources, not in colonial masters, but in all the Filipino license to accord them rights that the Constitution
people.—The concerted effort to malign the Regalian withholds from the rest of the Filipino people. I would
Doctrine as a vestige of the colonial past must fail. Our concede giving them priority in the use, the enjoyment
Constitution vests the ownership of natural resources, and the preservation of their ancestral lands and
not in colonial masters, but in all the Filipino people. As domains. But to grant perpetual ownership and control of
the protector of the Constitution, this Court has the sworn duty to the nation’s substantial wealth to them, to the exclusion
uphold the tenets of that Constitution—not to dilute, circumvent of other Filipino citizens who have chosen to live and
or create exceptions to them. abide by our previous and present Constitutions, would
Same; Same; Same; Same; Since RA 8371 defines be not only unjust but also subversive of the rule of law.
ancestral domains as including the natural resources found therein In giving ICCs/IPs rights in derogation of our
fundamental law, Congress is effectively mandating (DENR) and Secretary of the Department of Budget and
“reverse discrimination.” In seeking to improve their lot, Management (DBM) filed through the Solicitor General
it would be doing so at the expense of the majority of a consolidated Comment. The Solicitor General is of the
the Filipino people. Such short-sighted and misplaced view that the IPRA is partly unconstitutional on the
generosity will spread the roots of discontent and, in the ground that it grants ownership over natural resources
long term, fan the fires of turmoil to a conflagration of to indigenouspeoples and prays that thepetition
national proportions. begranted in part.
Social Justice; The law must help the powerless by enabling On November 10, 1998, a group of intervenors,
them to take advantage of opportunities and privileges that are open composed of Sen. Juan Flavier, one of the authors of the
to all and by preventing the powerful from exploiting and oppressing IPRA, Mr. Ponciano Bennagen, a member of the 1986
them.—Peace cannot be attained by brazenly and Constitutional Commission, and the leaders and
permanently depriving the many in order to coddle the members of 112 groups of indigenous peoples (Flavier,
few, however disadvantaged they may have been. et al.), filed their Motion for Leave to Intervene. They
Neither can a just society be approximated by maiming join the NCIP in defending the constitutionality of IPRA
the healthy to place them at par with the injured. Nor and praying for the dismissal of the petition.
can the nation survive by enclaving its wealth for the On March 22, 1999, the Commission on Human
exclusive benefit of favored minorities. Rather, the law Rights (CHR) likewise filed a Motion to Intervene
must help the powerless by enabling them to take advantage of and/or to Appear as Amicus Curiae. The CHR asserts
opportunities and privileges that are open to all and by preventing that IPRA is an expression of the principle of parens
the powerful from exploiting and oppressing them. This is the patriae and that the State has the responsibility to protect
essence of social justice—empowering and enabling the poor to he and guarantee the rights of those who are at a serious
able to compete with the rich and, thus, equally enjoy the blessings disadvantage like indigenous peoples. For this reason it
of prosperity, freedom and dignity. prays that the petition be dismissed.
On March 23, 1999, another group, composed of
SPECIAL CIVIL ACTION in the Supreme Court. the Ikalahan Indigenous People and the Haribon
Certiorari and Prohibition. Foundation for the Conservation of Natural Resources,
Inc. (Haribon, et al.), filed a Motion to Intervene with
attached Comment-in-Intervention. They agree with the
The facts are stated in the resolution of the Court. NCIP and Flavier, et al. that IPRA is consistent with the
Barbara Anne C. Migallos & Troy A. Luna, Raymond Constitution and pray that the petition for prohibition
Parsifal A. Fortun & Bienvenido O. Bulatao for petitioners. and mandamus be dismissed.
The Solicitor General for respondents. The motions for intervention of the aforesaid
Luna, Bonpin,Perez & Associates for intervenors. groups and organizations were granted.
Rodolfo C. Rapista for intervenors-oppositors. Oral arguments were heard on April 13, 1999.
Leilene Carantes-San Juan for Sioco-Cariño Family. Thereafter, the parties and intervenors filed their
R E S O L U TI O N respective memoranda in which they reiterate the
arguments adduced in their earlier pleadings and during
the hearing.
PER CURIAM:
Petitioners assail the constitutionality of the
following provisions of the IPRA and its Implementing
Petitioners Isagani Cruz and Cesar Europa brought this
Rules on the ground that they amount to an unlawful
suit for prohibition and mandamus as citizens and
deprivation of the State’s ownership over lands of the
taxpayers, assailing the constitutionality of certain
public domain as well as minerals and other natural
provisions of Republic Act No. 8371 (R.A. 8371),
resources therein, in violation of the regalian doctrine
otherwise known as the Indigenous Peoples Rights Act
embodied in Section 2, Article XII of the Constitution:
of 1997 (IPRA), and its Implementing Rules and
Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court 1. “(1)Section 3(a) which defines the extent and
required respondents to comment.1 In compliance, coverage of ancestral domains, and Section
respondents Chairperson and Commissioners of the 3(b) which, in turn, defines ancestral lands;
National Commission on Indigenous Peoples (NCIP), 2. “(2)Section 5, in relation to section 3(a), which
the government agency created under the IPRA to provides that ancestral domains including
implement its provisions, filed on October 13, 1998 their inalienable public lands, bodies of water,
Comment to the Petition, in which they defend the mineral and other resources found within
constitutionality of the IPRA andpray that ancestral domains are private but community
thepetitionbedismissed for lack of merit. property of the indigenous peoples;
On October 19, 1998, respondents Secretary of the
Department of Environment and Natural Resources
1. “(3)Section 6 in relation to Section 3(a) and Corporation, the jurisdiction of said officials
3(b) which defines the composition of oversaid area terminates;
ancestral domains and ancestral lands; 2. “(3)Section 63 which provides the customary
2. “(4)Section 7 which recognizes and enumerates law, traditions and practices of indigenous
the rights of the indigenous peoples over peoples shall be applied first with respect to
theancestral domains; property rights, claims of ownership,
3. “(5)Section 8 which recognizes and enumerates hereditary succession and settlement of land
the rights of the indigenous peoples over disputes, and that any doubt or ambiguity in
theancestrallands; the interpretation thereof shall be resolvedin
4. “(6)Section 57 which provides for priority favorof the indigenous peoples;
rights of the indigenous peoples in the 3. “(4)Section 65 which states that customary
harvesting, extraction, development or laws and practices shall be used to resolve
exploration of minerals and other natural disputes involving indigenous peoples; and
resources within the areas claimed to be their 4. “(5)Section 66 which vests on the NCIP the
ancestral domains, and the right to enter into jurisdiction over all claims and disputes
agreements with non-indigenous peoples for involving rights of theindigenous peoples.”5
the development and utilization of natural
resources therein for a period not exceeding Finally, petitioners assail the validity of Rule VII, Part II,
25 years, renewable for not more than 25 Section 1 of the NCIP Administrative Order No. 1,
years;and series of 1998, which provides that “the administrative
5. “(7)Section 58 which gives the indigenous relationship of the NCIP to the Office of the President
peoples the responsibility to maintain, is characterized as a lateral but autonomous relationship
develop, protect and conserve the ancestral for purposes of policy and program coordination.” They
domains and portions thereof which are contend that said Rule infringes upon the President’s
found to be necessary for critical watersheds, power of control over executive departments under
mangroves, wildlife sanctuaries, wilderness, Section 17,Article VII of the Constitution.6
protected areas, forest cover or Petitionerspray for the following:
reforestation.”2
1. “(1)A declaration that Sections 3, 5, 6, 7, 8,
Petitioners also contend that, by providing for an 52[i], 57, 58, 59, 63, 65 and 66 and other
allencompassing definition of “ancestral domains” and related provisions of R.A. 8371 are
“ancestral lands” which might even include private lands unconstitutional and invalid;
found within said areas, Sections 3(a) and 3(b) violate the 2. “(2)The issuance of a writ of prohibition
rights of private landowners.3 directing the Chairperson and
In addition, petitioners question the provisions of Commissioners of the NCIP to cease and
the IPRA defining the powers and jurisdiction of the desist from implementing theassailed
NCIP and making customary law applicable to the provisions of R.A.8371 and its Implementing
settlement of disputes involving ancestral domains and Rules;
ancestral lands on the ground that these provisions
violate the due process clause of the
1. “(3)The issuance of a writ of prohibition
Constitution.4 These provisions are:
directing the Secretary of the Department of
Environment and Natural Resources to cease
1. “(1)Sections 51 to 53 and 59 which detail the and desist from implementing Department of
process of delineation and recognition of Environment and Natural Resources
ancestral domains and which vest on the CircularNo. 2, series of 1998; “(4)The
NCIP the sole authority todelineate issuance of a writ of prohibition directing the
ancestraldomainsand ancestral lands; Secretary of Budget and Management to
cease and desist from disbursing public funds
1. “(2)Section 52[i] which provides that upon for the implementation of the assailed
certification by the NCIP that a particular provisions of R.A. 8371; and
area is an ancestral domain and upon 2. “(5)The issuance of a writ of mandamus
notification to the following officials, namely, commanding the Secretary of Environment
the Secretary of Environment and Natural and Natural Resources to comply with his
Resources, Secretary of Interior and Local duty of carrying out the State’s constitutional
Governments, Secretary of Justice and mandate to control and supervise the
Commissioner of the National Development exploration, development, utilization and
conservation of Philippine natural Disadvantages of History for Life.” Expounding on
resources.”7 Nietzsche’s essay, Judge Richard Posner1 wrote:2
“Law is the most historically oriented, or if you like the
After due deliberation on the petition, the members of most backward-looking, the most ‘past-dependent,’ of
the Court voted as follows: the professions. It venerates tradition, precedent,
Seven (7) voted to dismiss the petition. Justice pedigree, ritual, custom, ancient practices, ancient texts,
Kapunan filed an opinion, which the Chief Justice and archaic terminology, maturity, wisdom, seniority,
Justices Bellosillo, Quisumbing, and Santiago join, gerontocracy, and interpretation conceived of as a
sustaining the validity of the challenged provisions of method of recovering history. It is suspicious of
R.A. 8371. Justice Puno also filed a separate opinion innovation, discontinuities, ‘paradigm shifts,’ and the
sustaining all challenged provisions of the law with the energy and brashness of youth. These ingrained attitudes
exception of Section 1, Part II, Rule III of NCIP are obstacles to anyone who wants to re-orient law in a
Administrative Order No. 1, series of 1998, the Rules more pragmatic direction. But, by the same
and Regulations Implementing the IPRA, and Section 57 token, pragmatic jurisprudence must come to terms with history.”
of the IPRA which he contends should be interpreted as When Congress enacted the Indigenous Peoples Rights
dealing with the large-scale exploitation of natural Act (IPRA), it introduced radical concepts into the
resources and should be read in conjunction with Philippine legal system which appear to collide with
Section 2, Article XII of the 1987 Constitution. On the settled constitutional and jural precepts on state
other hand, Justice Mendoza voted to dismiss the ownership of land and other natural resources. The
petition solely on the ground that it does not raise a sense and subtleties of this law cannot be appreciated
justiciable controversy and petitioners do not have without considering its distinct sociology and the
standing toquestion the constitutionality of R.A. 8371. labyrinths of its history. This Opinion attempts to
Seven (7) other members of the Court voted to grant the interpret IPRA by discovering its soul shrouded by the
petition. Justice Panganiban filed a separate opinion mist of our history. After all, the IPRA was enacted by
expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), Congress not only to fulfill the constitutional mandate
8, and related provisions of R.A. 8371 are of protecting the indigenous cultural communities’ right
unconstitutional. He reserves judgment on the to their ancestral land but more importantly, to correct a
constitutionality of Sections 58, 59, 65, and 66 of the law, grave historical injustice to our indigenous people.
which he believes must await the filing of specific cases This Opinion discusses the following:
by those whose rights may have been violated by the
IPRA. Justice Vitug also filed a separate opinion 1. I.The Development of the Regalian Doctrine
expressing the view that Sections 3(a), 7, and 57 of R.A. in the Philippine Legal System.
8371 are unconstitutional. Justices Melo, Pardo, Buena,
Gonzaga-Reyes, and De Leon join in the separate 1. A.The Laws of the Indies
opinions of Justices Panganiban and Vitug. 2. B.Valenton v. Murciano
As the votes were equally divided (7 to 7) and the 3. C.The Public Land Acts and the Torrens
necessary majority was not obtained, the case was System
redeliberated upon. However, after redeliberation, the 4. D.The Philippine Constitutions
voting remained the same. Accordingly, pursuant to Rule
56, Section 7 of the Rules of Civil Procedure, thepetition
1. II.The Indigenous Peoples Rights Act (IPRA).
is DISMISSED.
Attached hereto and made integral parts thereof are
the separate opinions of Justices Puno, Vitug, Kapunan, 1. A.Indigenous Peoples
Mendoza, and Panganiban. 1. 1.Indigenous Peoples: Their History
SO ORDERED. 2. 2.Their Concept of Land
Davide,
Jr. (C.J.), Bellosillo, Melo, Puno, Vitug, Kapunan,Mendoza, Pa 1. III.The IPRA is a Novel Piece of Legislation.
nganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago and De Leon, Jr., JJ., concur. 1. A.Legislative History
SEPARATE OPINION
1. IV.The Provisions of the IPRA Do Not
PUNO, J: Contravene the Constitution.

PRECIS 1. A.Ancestral domains and ancestral lands are


A classic essay on the utility of history was written in 1874 the private property of indigenous peoples
by Friedrich Nietzsche entitled “On the Uses and
and do not constitute part of the land of the DISCUSSION
public domain.
I. THE DEVELOPMENTOF THE REGALIAN
1. 1.The right to ancestral domains and
ancestral lands: how acquired DOCTRINE IN THEPHILIPPINE LEGAL
2. 2.The concept of native title SYSTEM.
The capacity of the State to own or acquire property is
1. (a)Cariño v. Insular Government the state’s power of dominium.3 This was the foundation
2. (b)Indian Title to land for the early Spanish decrees embracing the feudal
3. (c)Why the Cariño doctrine is unique theory of jura regalia. The “Regalian Doctrine” or jura
regalia is a Western legal concept that was first introduced
1. 3.The option of securing a Torrens title to the by the Spaniards into the country through the Laws of the Indies
ancestral land and the Royal Cedulas. The Laws of the Indies, i.e., more
specifically, Law 14, Title 12, Book 4 of the Novisima
Recopilacion de Leyes de las Indias, set the policy of the
1. B.The right of ownership and possession by Spanish Crown with respect to the Philippine Islands in
the ICCs/IPs to their ancestral domains is a the following manner:
limited form of ownership and does not “We, having acquired full sovereignty over the Indies,
include the right to alienate the same. and all lands, territories, and possessions not heretofore
ceded away by our royal predecessors, or by us, or in our
1. 1.The indigenous concept of ownership and name, still pertaining to the royal crown and patrimony,
customary law it is our will that all lands which are held without proper
and true deeds of grant be restored to us as they belong
1. C.Sections 7 (a), 7 (b) and 57 of the IPRA do to us, in order that after reserving before all what to us
not violate the Regalian Doctrine enshrined or to our viceroys, audiencias, and governors may seem
in Section 2, Article XII of the 1987 necessary for public squares, ways, pastures, and
Constitution. commons in those places which are peopled, taking into
consideration not only their present condition, but also
1. 1.The rights of ICCs/IPs over their ancestral their future and their probable increase, and after
domains and lands distributing to the natives what may be necessary for
2. 2.The right of ICCs/IPs to develop lands and tillage and pasturage, confirming them in what they now
natural resources within the ancestral have and giving them more if necessary, all the rest of
domains does not deprive the State of said lands may remain free and unencumbered for us to
ownership over the natural resources, control disposeof as we may wish.
and supervision in their development and We therefore order and command that all viceroys and
exploitation. presidents of pretorial courts designate at such time as
shall to them seem most expedient, a suitable period
within which all possessors of tracts, farms, plantations,
1. (a)Section 1, Part II, Rule III of the and estates shall exhibit to them and to the court officers
Implementing Rules goes beyond the appointed by them for this purpose, their title deeds
parameters of Section 7(a) of the law on thereto. And those who are in possession by virtue of
ownership of ancestral domains and is ultra proper deeds and receipts, or by virtue of just
vires. prescriptive right shall be protected, and all the rest shall
2. (b)The small-scale utilization of natural be restored to us tobedisposedof at our will.”4
resources in Section 7 (b) of the IPRA is The Philippines passed to Spain by virtue of “discovery”
allowed under Paragraph 3, Section 2, Article and conquest. Consequently, all lands became the
XII of the 1987 Constitution. exclusive patrimony and dominion of the Spanish
3. (c)The large-scale utilization of natural Crown. The Spanish Government took charge of
resources in Section 57 of the IPRA may be distributing the lands by issuing royal grants and
harmonized with Paragraphs 1 and 4, Section concessions to Spaniards, both military and
2, Article XII of the 1987 Constitution. civilian.5 Private land titles could only be acquired from
the government either by purchase or by
1. V.The IPRA is a Recognition of Our Active thevariousmodes of landgrant from the Crown. 6
Participation in the International Indigenous The Laws of the Indies were followed by the Ley
Movement. Hipotecaria, or the Mortgage Law of 1893.7 The Spanish
Mortgage Law provided for the systematic registration
of titles and deeds as well as possessory claims. The law
sought to register and tax lands pursuant to the Royal
Decree of 1880. The Royal Decree of 1894, or the the kings who preceded him. This statement excludes the idea
“Maura Law,” was partly an amendment of the Mortgage that there might be lands not so granted, that did not belong to the
Law as well as the Laws of the Indies, as already king. It excludes the idea that the king was not still the owner of
amended by previous orders and decrees.8 This was the all ungranted lands, because some private person had been
last Spanish land law promulgated in the Philippines. It in the adverse occupation of them. By the mandatory
required the “adjustment” or registration of all part of the law all the occupants of the public lands are
agricultural lands,otherwise the lands shall revert to the required to produce before the authorities named, and
state. within a time to be fixed by them, their title papers. And
Four years later, by the Treaty of Paris of December 10, those who had good title or showed prescription were to
1898,Spain ceded to the government of the United be protected in their holdings. It is apparent that it was
States all rights, interests and claims over the national not the intention of the law that mere possession for a
territory of the Philippine Islands. In 1903, the United length of time should make the possessors the owners
States colonial government, through the Philippine of the land possessed by them without any action on the
Commission, passed Act No. 926, the first Public Land part of the authorities.”12
Act. The preamble stated that all those lands which had not
In 1904, under the American regime, this Court decided been granted by Philip, or in his name, or by the kings
the case of Valenton v. Murciano.9 who preceded him, belonged to the Crown.13 For those
Valenton resolved the question of which is the better lands granted by the king, the decree provided for a
basis for ownership of land: long-time occupation or system of assignment of such lands. It also ordered that
paper title. Plaintiffs had entered into peaceful all possessors of agricultural land should exhibit their
occupation of the subject land in 1860. Defendant’s title deed, otherwise, the land would be restored to the
predecessor-in-interest, on the other hand, purchased Crown.14
the land from the provincial treasurer of Tarlac in 1892. The Royal Cedula of October 15, 1754 reinforced
The lower court ruled against the plaintiffs on the the Recopilacion when it ordered the Crown’s principal
ground that they had lost all rights to the land by not subdelegate to issue a generalorder directing
objecting to the administrative sale. Plaintiffs appealed thepublicationof the Crown’s instructions:
the judgment, asserting that their 30-year adverse “xxx to the end that any and all persons who, since the
possession, as an extraordinary period of prescription in year 1700, and up to the date of the promulgation and
the Partidasand the Civil Code, had given them title to publication of said order, shall have occupied royal
the land as against everyone, including the State; and that lands, whether or not x xx cultivated or tenanted, may
the State, not owning the land, couldnot validly transmit xxx appear and exhibit to said subdelegates the titles and
it. patents by virtue of which said lands are occupied, x xx.
The Court, speaking through Justice Willard, Said subdelegates will at the same time warn the parties
decided the case on the basis of “those special laws interested that in case of their failure to present their title
which from earliest time have regulated the disposition deeds within the term designated, without a just and
of the public lands in the colonies.”10 The question valid reason therefor, they will be deprived of and
posed by the Court was: “Did these special laws evicted from their lands, and they will begranted to
recognize any right of prescription as against the State as others.”15
to these lands; and if so, to what extentwas it On June 25, 1880, the Crown adopted regulations
recognized?” for the adjustment of lands “wrongfully occupied” by
Prior to 1880, the Court said, there were no laws private individuals in the Philippine
specifically providing for the disposition of land in the Islands. Valenton construed these regulations together
Philippines. However, it was understood that in the with contemporaneous legislative and executive
absence of any special law to govern a specific colony, interpretations of the law, and concluded that plaintiffs’
the Laws of the Indies would be followed. Indeed, in the case fared no better under the 1880 decree and other
Royal Order of July 5, 1862, it was decreed that until laws which followed it, than it did under the earlier ones.
regulations on the subject could be prepared, the Thus as a general doctrine, the Court stated:
authorities of the Phil-ippine Islands should follow “While the State has always recognized the right of the
strictly the Laws of the Indies, the Ordenanzaof occupant to a deed if he proves a possession for a
the Intendentes of 1786, and the Royal Cedula of 1754.11 sufficient length of time, yet it has always insisted that he
must make that proof before the proper administrative officers, and
Quoting the preamble of Law 14, Title 12, Book 4 of obtain from them his deed, and until he did that the Stateremained
the Recopilacion de Leyes de lasIndias,the court interpreted it the absolute owner.”16
as follows: In conclusion, the Court ruled: “We hold that from 1860
“In the preamble of this law there is, as is seen, a distinct to 1892 there was no law in force in these Islands by
statement that all those lands belong to the Crown which which the plaintiffs could obtain the ownership of these
have not been granted by Philip, or in his name, or by lands by prescription, without any action by the
State.”17 Valenton had no rights other than those which verbatim copy of the Massachussetts Land Registration
accrued to mere possession. Murciano, on the other Act of 1898,25 which, in turn, followed the principles and
hand, was deemed to be the owner of the land by virtue procedure of the Torrens system of registration
of the grant by the provincial secretary. In effect, formulated by Sir Robert Torrens who patterned it after
Valenton upheld the Spanish conceptof state the Merchant Shipping Acts in South Australia. The
ownershipof public land. Torrens system requires that the government issue an
As a fitting observation, the Court added that “[t]he official certificate of title attesting to the fact that the
policy pursued by the Spanish Government from earliest times, person named is the owner of the property described
requiring settlers on the public lands to obtain title deeds therefor therein, subject to such liens and encumbrances as
from the State, has been continued by the American Government thereon noted or the law warrants or reserves.26 The
in Act No. 926”18 certificate of title is indefeasible and imprescriptible and
all claims to the parcel of land are quieted upon issuance
Act No. 926, the first Public Land Act, was passed in of said certificate. This system highly facilitates land
pursuance of the provisions of the Philippine Bill of conveyance and negotiation.27
1902. The law governed the disposition of lands of the The Regalian doctrine was enshrined in the 1935
public domain. It prescribed rules and regulations for the Constitution. One of the fixed and dominating objectives
homesteading, selling, and leasing of portions of the of the 1935 Constitutional Convention was the
public domain of the Philippine Islands, and prescribed nationalization and conservation of the natural resources
the terms and conditions to enable persons to perfect of the country.28 There was an overwhelming sentiment in the
their titles to public lands in the Islands. It also provided Convention in favor of the principle of state ownership of natural
for the “issuance of patents to certain native settlers resources and the adoption of the Regalian doctrine.29 State
upon public lands,” for the establishment of town sites ownership of natural resources was seen as a necessary
and sale of lots therein, for the completion of imperfect starting point to secure recognition of the state’s power
titles, and for the cancellation or confirmation of to control their disposition, exploitation, development,
Spanish concessions and grants in the Islands.” In short, or utilization.30The delegates to the Constitutional
the Public Land Act operated on the assumption that Convention very well knew that the concept of State
title to public lands in the Philippine Islands remained in ownership of land and natural resources was introduced
the government;19 and that the government’s title to by the Spaniards, however, they were not certain
public land sprung from the Treaty of Paris and other whether it was continued and applied by the Americans.
subsequent treaties between Spain and the United To remove all doubts, the Convention approved the
States.20 The term “public land” referred to all lands of provision in the Constitution affirming the
the public domain whose title still remained in the Regaliandoctrine.31
government and are thrown open to private Thus, the 1935 Constitution, in Section 1 of Article
appropriation and settlement,21 and excluded the XIII on “Conservation andUtilization of Natural
patrimonial property of the government and the friar Resources,” reads as follows:
lands.22 “Sec. 1. All agricultural, timber, and mineral lands of the public
Act No. 926 was superseded in 1919 by Act 2874, the domain, waters, minerals, coal, petroleum, and other mineral oils,
second Public Land Act. This new law was passed under the all forces of potential energy, and other natural resources of the
Jones Law. It was more comprehensive in scope but Philippines belong to the State, and their disposition, exploitation,
limited the exploitation of agricultural lands to Filipinos development, or utilization shall be limited to citizens of the
and Americans and citizens of other countries which Philippines, or to corporations or associations at least sixty per
gave Filipinos the same privileges.23 After the passage of centum of the capital of which is owned by such citizens, subject to
the 1935 Constitution, Act 2874 was amended in 1936 any existing right, grant, lease, or concession at the time of the
by Commonwealth Act No. 141. Commonwealth Act No. inauguration of the Government established under this
141 remains the present Public Land Law and it is Constitution. Natural resources, with the exception of public
essentially the same Insular Government, 7 Phil. 132 agricultural land, shall not be alienated, and no license,
[1906]; all decided by the Philippine Supreme Court. concession, or lease for the exploitation, development,
as Act 2874. The main difference between the two or utilization of any of the natural resources shall be
relates to the transitory provisions on the rights of granted for a period exceeding twenty-five years, except
American citizens and corporations during the as to water rights for irrigation, water supply, fisheries,
Commonwealth period at par with Filipino citizens and or industrial uses other than the development of water
corporations.24 power, in which cases beneficial use may be the measure
Grants of public land were brought under the operation of the and thelimit of the grant.”
Torrens system under Act 496, or the Land Registration Law of The 1973 Constitution reiterated the Regalian doctrine in
1903. Enacted by the Philippine Commission, Act 496 Section 8, Article XIV on the “National Economy and
placed all public and private lands in the Philippines the Patrimony of the Nation,” to wit:
under the Torrens system. The law is said to be almost a
“Sec. 8. All lands of the public domain, waters, minerals, coal, Other rights are also granted theICCs/IPs, and these
petroleum and other mineral oils, all forces of potential energy, are:
fisheries, wildlife, and other natural resources of the Philippines - the right to developlandsand natural resources;
belong to the State. With the exception of agricultural, industrial
- the right to stayinthe territories;
or commercial, residential, and resettlement lands of the public
domain, natural resources shall not be alienated, and no license, - the right in case of displacement;
concession, or lease for the exploration, development, exploitation, - the right to safe and clean airand water;
or utilization of any of the natural resources shall be granted for a - the right to claim parts of reservations;
period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, - the right to resolveconflict;32
water supply, fisheries, or industrial uses other than the - the right to ancestral lands which include
development of water power, in which cases beneficial
use may be the measure and the limit of the grant.” 1. a.the right to transfer land/property to/among
The 1987 Constitution reaffirmed the Regalian doctrine members of the same ICCs/IPs, subject to
in Section 2 of Article XII on “National Economy and customary laws and traditions of the
Patrimony,” to wit: community concerned;
“Sec. 2. All lands of the public domain, waters, minerals, 2. b.the right to redemption for a period not
coal, petroleum, and other mineral oils, all forces of exceeding 15 years from date of transfer, if
potential energy, fisheries, forests or timber, wildlife, the transfer is to a non-member of the
flora and fauna, and other natural resources are owned ICC/IP and is tainted by vitiated consent of
by the State. With the exception of agricultural lands, all the ICC/IP, or if the transferis for an
other natural resources shall not be alienated. The unconscionable consideration.33
exploration, development and utilization of natural
resources shall be under the full control and supervision
Within their ancestral domains and ancestral lands, the
of the State. The State may directly undertake such
ICCs/IPs are given the right to self-governance and
activities or it may enter into co-production, joint
empowerment,34 social justice and human rights,35 the
venture, or production-sharing agreements with Filipino
right to preserve and protect their culture, traditions,
citizens, or corporations or associations at least sixty per
institutions and community intellectual rights, and the
centum of whose capital is owned by such citizens. Such
right to develop their own sciences and technologies.36
agreements may be for a period not exceeding twenty-
To carry out the policies of the Act, the law created the
five years, renewable for not more than twenty-five
National Commission on Indigenous Peoples (NCIP).
years, and under such terms and conditions as may be
The NCIP is an independent agency under the Office of
provided by law. In cases of water rights for irrigation,
the President and is composed of seven (7)
water supply, fisheries, or industrial uses other than the
Commissioners belonging to ICCs/IPs from each of the
development of water power, beneficial use may be the
ethnographic areas—Region I and the Cordilleras;
measure and limit of the grant.
Region II; the rest of Luzon; Island groups including
x x x.”
Mindoro, Palawan, Romblon, Panay and the rest of the
Simply stated, all lands of the public domain as well as all
Visayas; Northern and Western Mindanao; Southern and
natural resources enumerated therein, whether on public or
Eastern Mindanao; and Central Mindanao.37 The NCIP
private land, belong to the State. It is this concept of State
took over the functions of the Office for Northern
ownership that petitioners claim is being violated by the IPRA.
Cultural Communities and the Office for Southern
II. THE INDIGENOUS PEOPLES RIGHTS Cultural Communities created by former President
ACT. Corazon Aquino which were merged under a revitalized
Republic Act No. 8371 is entitled “An Act to Recognize, structure.38
Protect and Promote the Rights of Indigenous Cultural Disputes involving ICCs/IPs are to be resolved under
Communities/Indigenous Peoples, Creating a National customary laws and practices. When still unresolved, the
Commission on Indigenous Peoples, Establishing matter may be brought to the NCIP, which is granted
Implementing Mechanisms, Appropriating Funds quasi-judicial powers.39 The NCIP’s decisions may be
Therefor, and for Other Purposes.” It is simply known as appealed to the Court of Appeals by a petition for
“The Indigenous Peoples Rights Act of 1997” or the IPRA. review.
The IPRA recognizes the existence of the indigenous Any person who violates any of the provisions of the
cultural communities or indigenous peoples (ICCs/IPs) as a Act such as, but not limited to, unauthorized and/or
distinct sector in Philippine society. It grants these people the unlawful intrusion upon ancestral lands and domains
ownership and possession of their ancestral domains and ancestral shall be punished in accordance with customary laws or
lands, and defines the extent of these lands and domains. The imprisoned from 9 months to 12 years and/or fined
ownership given is the indigenous concept of ownership under from P100,000.00 to P500,000.00 and obliged to pay
customary law which traces its origin to native title. damages.40
The IPRA is a law dealing with a specific group of 1. 1.In the Cordillera Autonomous Region—
people, i.e., the Indigenous Cultural Communities Kankaney, Ibaloi, Bontoc, Tinggian or Itneg,
(ICCs) or the Indigenous Peoples (IPs). The term Ifugao, Kalinga, Yapayao, Aeta or Agta or
“ICCs” is used in the 1987 Constitution while that of Pugot, and Bago of Ilocos Norte and
“IPs” is the contemporary international language in the Pangasinan; Ibanag of Isabela, Cagayan;
International Labor Organization (ILO) Convention Ilongot of Quirino and Nueva Vizcaya;
16941 and the United Nations (UN) Draft Declaration Gaddang of Quirino, Nueva Vizcaya, Itawis
on the Rights of Indigenous Peoples.42 of Cagayan; Ivatan of Batanes, Aeta of
ICCs/IPs are defined by the IPRA as: Cagayan, Quirino and Isabela.
“Sec. 3 [h]. Indigenous Cultural Communities/Indigenous 2. 2.In Region III—Aetas.
Peoples.—Refer to a group of people or homogeneous 3. 3.In Region IV—Dumagats of Aurora, Rizal;
societies identified by self-ascription and ascription by Remontado of Aurora, Rizal, Quezon;
others, who have continuously lived as organized Alangan or Mangyan, Batangan, Buid or
community on communally bounded and defined Buhid, Hanunuo and Iraya of Oriental and
territory, and who have, under claims of ownership since Occidental Mindoro; Tadyawan of
time immemorial, occupied, possessed and utilized such Occidental Mindoro; Cuyonon, Palawanon,
territories, sharing common bonds of language, customs, Tagbanua and Tao’t bato of Palawan.
traditions and other distinctive cultural traits, or who 4. 4.In Region V—Aeta of Camarines Norte and
have, through resistance to political, social and cultural Camarines Sur; Aeta-Abiyan, Isarog, and
inroads of colonization, non-indigenous religions and Kabihug of Camarines Norte; Agta, and
cultures, became historically differentiated from the Mayon of Camarines Sur; Itom of Albay;
majority of Filipinos. ICCs/IPs shall likewise include Cimaron of Sorsogon; and the Pullon of
peoples who are regarded as indigenous on account of Masbate and Camarines Sur.
their descent from the populations which inhabited the 5. 5.In Region VI—Ati of Negros Occidental,
country, at the time of conquest or colonization, or at Iloilo and Antique, Capiz; the Magahat of
the time of inroads of non-indigenous religions and Negros Occidental; the Corolano and Sulod.
cultures, or the establishment of present state 6. 6.In Region VII—Magahat of Negros Oriental
boundaries, who retain some or all of their own social, and Eskaya of Bohol.
economic, cultural and political institutions, but who 7. 7.In Region IX—the Badjao numbering about
may have been displaced from their traditional domains 192,000 in Tawi-Tawi, Zamboanga del Sur;
or who may have resettled outside their ancestral the Kalibugan of Basilan, the Samal, Subanon
domains.” and Yakat.
Indigenous Cultural Communities or Indigenous Peoples refer to a 8. 8.Region X—Numbering 1.6 million in Region
group of people or homogeneous societies who have continuously lived X alone, the IPs are: the Banwaon, Bukidnon,
as an organized community on communally bounded and defined Matigsalog, Talaanding of Bukidnon; the
territory. These groups of people have actually occupied, Camiguin of Camiguin Island; the Higa-unon
possessed and utilized their territories under claim of of Agusan del Norte, Agusan del Sur,
ownership since time immemorial. They share common Bukidnon and Misamis Occidental; the
bonds of language, customs, traditions and other Tigwahanon of Agusan del Sur, Misamis
distinctive cultural traits, or, they, by their resistance to Oriental and and Misamis Occidental, the
political, social and cultural inroads of colonization, non- Manobo of the Agusan provinces, and the
indigenous religions and cultures, became historically Umayamnon of Agusan and Bukidnon.
differentiated from the Filipino majority. ICCs/IPs also
include descendants of ICCs/IPs who inhabited the 1. 9.In Region XI—There are about 1,774,065
country at the time of conquest or colonization, who IPs in Region XI. They are tribes of the
retain some or all of their own social, economic, cultural Dibabaon, Mansaka of Davao del Norte;
and political institutions but who may have been Blaan, Kalagan, Langilad, Tboli and
displaced from their traditional territories or who may Talaingod of Davao del Sur; Mamamanua of
have resettled outside their ancestral domains. Surigao del Sur; Mandaya of the Surigao
provinces and Davao Oriental; Manobo Blit
1. 1.Indigenous Peoples: Their History of South Cotabato; the Mangguangon of
Davao and South Cotabato; Matigsalog of
Presently, Philippine indigenous peoples inhabit the Davao del Norte and Del Sur, Tagakaolo,
interiors and mountains of Luzon, Mindanao, Mindoro, Tasaday and Ubo of South Cotabato; and
Negros, Samar, Leyte, and the Palawan and Sulu group Bagobo of Davao del Sur and South
of islands. They are composed of 110 tribes and are as Cotabato. 10.In Region XII—Ilianen,
follows:
Tiruray, Maguindanao, Maranao, Tausug, rule and govern his subjects and promote their welfare
Yakan/Samal, and Iranon.43 and interests. A chieftain had wide powers for he
exercised all the functions of government. He was the
How these indigenous peoples came to live in the Philippines goes executive, legislator and judge and was the supreme
back toas early as 25,000 to30,000 B.C. commander in time of war.53
Laws were either customary or written. Customary laws were
Before the time of Western contact, the Philippine archipelago handed down orally from generation to generation and constituted
was peopled largely by the Negritos, Indonesians and the bulk of the laws of the barangay. They were preserved in
Malays.44 The strains from these groups eventually gave songs and chants and in the memory of the elder persons
rise to common cultural features which became the in the community.54 The written laws were those that the
dominant influence in ethnic reformulation in the chieftain and his elders promulgated from time to time
archipelago. Influences from the Chinese and Indian as the necessity arose.55 The oldest known written body
civilizations in the third or fourth millennium B.C. of laws was the Maragtas Code by Datu Sumakwel at
augmented these ethnic strains. Chinese economic and about 1250 A.D. Other old codes are the Muslim Code
socio-cultural influences came by way of Chinese of Luwaran and the Principal Code of Sulu.56 Whether
porcelain, silk and traders. Indian influence found their customary or written, the laws dealt with various
way into the religious-cultural aspect of precolonial subjects, such as inheritance, divorce, usury, loans,
society.45 partnership, crime and punishment, property rights,
The ancient Filipinos settled beside bodies of water. family relations and adoption. Whenever disputes arose,
Hunting and food gathering became supplementary these were decided peacefully through a court composed
activities as reliance on them was reduced by fishing and by the chieftain as “judge” and the barangay elders as
the cultivation of the soil.46 From the hinterland, coastal, “jury.” Conflicts arising between subjects of different
and riverine communities, our ancestors evolved an barangays were resolved by arbitration in which a board
essentially homogeneous culture, a basically composed of elders from neutral barangays acted as
common way of life where nature was a primary arbiters.57
factor. Community life throughout the archipelago was Baranganic society had a distinguishing feature: the absence of
influenced by, and responded to, common ecology. The private property in land. The chiefs merely administered the
generally benign tropical climate and the largely uniform lands in the name of the barangay. The social order was
flora and fauna favored similarities, not an extension of the family with chiefs embodying the
differences.47 Life was essentiallysubsistence but not higher unity of the community. Each individual,
harsh.48 therefore, participated in the community ownership of
The early Filipinos had a culture that was basically the soil and the instruments of production as a member
Malayan in structure and form. They had languages that of the barangay.58 This ancient communalism was
traced their origin to the Austronesian parent-stock and practiced in accordance with the concept of mutual
used them not only as media of daily communication but sharing of resources so that no individual, regardless of
also as vehicles for the expression of their literary status, was without sustenance. Ownership of land was non-
moods.49 They fashioned concepts and beliefs about the existent or unimportant and the right of usufruct was what
world that they could not see, but which they sensed to regulated the development of lands.59 Marine resources and
be part of their lives.50 They had their own religion and fishing grounds were likewise free to all. Coastal
religious beliefs. They believed in the immortality of the communities depended for their economic welfare on
soul and life after death. Their rituals were based on the kind of fishing sharing concept similar to those in
beliefs in a ranking deity whom they called Bathalang land communities.60 Recognized leaders, such as the
Maykapal, and a host of other deities, in the chieftains and elders, by virtue of their positions of
environmental spirits and in soul spirits. The early importance, enjoyed some economic privileges and
Filipinos adored the sun, the moon, the animals and benefits. But their rights, related to either land and sea,
birds, for they seemed to consider the objects of Nature were subject to their responsibility to protect the
as something to be respected. They venerated almost any communities from danger and to provide them with the
object that was close to their daily life, indicating the leadership and means of survival.61
importance of the relationship between man and the Sometime in the 13th century, Islam was introduced to the
object of nature.51 archipelago in Maguindanao. The Sultanate of Sulu was
The unit of government was the “barangay,” a term established and claimed jurisdiction over territorial areas
that derived its meaning from the Malay word represented today by Tawi-tawi, Sulu, Palawan, Basilan
“balangay,” meaning, a boat, which transported them to and Zamboanga. Four ethnic roups were within this
these shores.52 The barangay was basically a family-based jurisdiction: Sama, Tausug, Yakan and Subanon.62 The
community and consisted of thirty to one hundred Sultanate of Maguindanao spread out from Cotabato
families. Each barangay was different and ruled by a toward Maranao territory, now Lanao del Norte and
chieftain called a “dato.” It was the chieftain’s duty to Lanao del Sur.63
The Muslim societies evolved an Asiatic form of feudalism Christianized Filipinos, who generally came from the
where land was still held in common but was private in use. This lowland populations. Second, were the Moros or the
is clearly indicated in the Muslim Code of Luwaran. The Muslim communities, and third, were the infieles or
Code contains a provision on the lease of cultivated the indigenous communities.75
lands. It, however, has no provisionfor the acquisition, The Indio was a product of the advent of Spanish
transfer, cession or sale ofland.64 culture. This class was favored by the Spaniards and was
The societies encountered by Magellan and allowed certain status although below the Spaniards.
Legaspi therefore were primitive economies where most The Moros and infieles were regarded as the lowest
production was geared to the use of the producers and classes.76
to the fulfillment of kinship obligations. They were not The Moros and infieles resisted Spanish rule and
economies geared to exchange and profit.65 Moreover, Christianity.The Moros were driven from Manila and the
the family basis of barangay membership as well as of Visayas to Mindanao; while the infieles, to the
leadership and governance worked to splinter the hinterlands. The Spaniards did not pursue them into the
population of the islands into numerous small and deep interior. The upland societies were naturally outside
separate communities.66 the immediate concern of Spanish interest, and the cliffs
When the Spaniards settled permanently in the Philippines in and forests of the hinterlands were difficult and
1565, they found the Filipinos living in barangay settlements inaccessible, allowing the infieles, in effect, relative
scattered along water routes and river banks. One of the first security.77 Thus, the infieles, which were peripheral to
tasks imposed on the missionaries and the colonial administration, were not only able to preserve
encomenderos was to collect all scattered Filipinos their own culture but also thwarted the Christianization
together in a reduccion.67 As early as 1551, the Spanish process, separating themselves from the newly evolved
government assumed an unvarying solicitous attitude Christian community.78 Their own political, economic
towards the natives.68 The Spaniards regarded it a sacred and social systems were kept constantly alive and
“duty to conscience and humanity to civilize these less vibrant.
fortunate people living in the obscurity of ignorance” The pro-Christian or pro-Indio attitude of
and to accord them the “moral and material advantages” colonialism brought about a generally mutual feeling of
of community life and the “protection and vigilance suspicion, fear, and hostility between the Christians on
afforded them by the same laws.”69 the one hand and the non-Christians on the other.
The Spanish missionaries were ordered to Colonialism tended to divide and rule an otherwise
establish puebloswhere the church and convent would be culturally and historically related populace through a
constructed. All the new Christian converts were colonial system that exploitedboth the virtues and
required to construct their houses around the church vicesof the Filipinos.79
and the unbaptized were invited to do the same.70 With President McKinley, in his instructions to the Philippine
the reduccion, the Spaniards attempted to “tame” the Commission of April 7,1900, addressed the existenceof the
reluctant Filipinos through Christian indoctrination infieles:
using the convento/casa real/plazacomplex as focal point. “In dealing with the uncivilized tribes of the Islands, the
The reduccion, to the Spaniards, was a “civilizing” device Commission should adopt the same course followed by Congress in
to make the Filipinos law-abiding citizens of the Spanish permitting the tribes of our North American Indians to maintain
Crown, and in the long run, to make them ultimately their tribal organization and government, and under which
adoptHispanic culture and civilization.71 many of those tribes are now living in peace and
All lands lost by the old barangays in the process of pueblo contentment, surrounded by civilization to which they
organization as well as all lands not assigned to them and the are unable or unwilling to conform. Such tribal
pueblos, were now declared to be crown lands or realengas, belonging government should, however, be subjected to wise and
to the Spanish king. It was from the realengas that land grants firm regulation; and, without undue or petty
were made tonon-Filipinos.72 interference, constant and active effort should be
The abrogation of the Filipinos’ ancestral rights in land and exercised to prevent barbarous practicesand introduce
the introduction of the concept of public domain were the most civilized customs.”80
immediate fundamental results of Spanish colonial theory and Placed in an alternative of either letting the natives alone
law.73The concept that the Spanish king was the owner of or guiding them in the path of civilization, the American
everything of value in the Indies or colonies was imposed on the government chose “‘to adopt the latter measure as one
natives, and the natives were stripped of theirancestral rights to more in accord with humanity andwith the national
land.74 conscience.”81
The Americans classified the Filipinos into two:
Increasing their foothold in the Philippines, the Spanish the Christian Filipinos and the non-Christian Filipinos. The
colonialists, civil and religious, classified the Filipinos term “non-Christian” referred not to religious belief, but
according to their religious practices and beliefs, and to a geographical area, and more directly, “to natives of
divided them into three types. First were the Indios, the the Philippine Islands of a low grade of civilization,
usually living in tribal relationship apart from settled “The State shall consider the customs, traditions, beliefs,
communities.”82 and interests of national cultural communities in the
Like the Spaniards, the Americans pursued a policy of formulation and implementation of State policies.”88
assimilation. In 1903, they passed Act No. 253 creating the For the first time in Philippine history, the “non-Christian tribes”
Bureau of Non-Christian Tribes (BNCT). Under the or the “cultural minorities” were addressed by the highest law of
Department of the Interior, the BNCTs primary task the Republic, and they were referred to as “cultural
was to conduct ethnographic research among communities.”More importantly this time, their
unhispanized Filipinos, including those in Muslim “uncivilized” culture was given some recognition and
Mindanao, with a “special view to determining the most their “customs, traditions, beliefs and interests” were to
practicable means for bringing about their advancement be considered by the State in the formulation and
in civilization and prosperity.” The BNCT was modeled after implementation of State policies. President Marcos
the bureau dealing with American Indians. The agency took a abolished the CNI and transferred its functions to
keen anthropological interest in Philippine cultural the Presidential Adviser on National Minorities
minorities and produced a wealth of valuable materials (PANAMIN). The PANAMIN was tasked to integrate
about them.83 the ethnic groups that sought full integration into the
larger community, and at the same time “protect the
The 1935 Constitution did not carry any policy on the non- rights of those who wish to preserve their original
Christian Filipinos. The raging issue then was the conservation of lifeways beside the larger community.”89 In short, while still
the national patrimony for the Filipinos. adopting the integration policy, the decree recognized the right of
In 1957, the Philippine Congress passed RA. No. tribal Filipinos to preserve their way of life.90
1888, an “Act to effectuate in a more rapid and complete In 1974, President Marcos promulgated P.D. No.
manner the economic, social, moral and political 410, otherwise known as the Ancestral Lands Decree. The
advancement of the non-Christian Filipinos or national decree provided for the issuance of land occupancy
cultural minorities and to render real, complete, and certificates to members of the national cultural
permanent the integration of all said national cultural communities who were given up to 1984 to register their
minorities into the body politic, creating the Commission claims.91 In 1979, the Commission on the Settlement of Land
on National Integration charged with said functions.” The Prob-Abelardo, Ancestral Domain Rights: Issues,
law called for a policy of integration of indigenous peoples Responses, and Recommendations, Ateneo Law Journal,
into the Philippine mainstream and for this purpose vol. 38, No. 1, p. 92 [1993].
created the Commission on National Integration (CNI).84 The lems was created under E.O. No. 561 which provided a
CNI was given, more or less, the same task as the BNCT mechanism for the expeditious resolution of land
during the American regime. The post-independence policy of problems involving small settlers, landowners, and tribal
integration was like the colonial policy of assimilation understood Filipinos.92
in the context ofaguardian-ward relationship.85 Despite the promulgation of these laws, from 1974
The policy of assimilation and integration did not to the early 1980’s, some 100,000 Kalingas and Bontoks
yield the desired result. Like the Spaniards and Americans, of the Cordillera region were displaced by the Chico
government attempts at integration met with fierce River dam project of the National Power Corporation
resistance. Since World War II, a tidal wave of Christian (NPC). The Manobos of Bukidnon saw their land
settlers from the lowlands of Luzon and the Visayas bulldozed by the Bukidnon Sugar Industries Company
swamped the highlands and wide open spaces in (BUSCO). In Agusan del Sur, the National
Mindanao.86 Knowledge by the settlers of the Public Land Acts Development Company was authorized by law in 1979
and the Torrens system resulted in the titling of several ancestral to take approximately 40,550 hectares of land that later
lands in the settlers’ names. With government initiative and became the NDC-Guthrie plantation in Agusan del Sur.
participation, this titling displaced several indigenous peoples from Most of the land was possessed by the Agusan
their lands.Worse, these peoples were also displaced by natives.93 Timber concessions, water projects,
projects undertaken by the nationalgovernment in the plantations, mining, and cattle ranching and other
name of nationaldevelopment.87 by R.H. Barnes, A. projects of the national government led not only to the
Gray and B. Kingsbury, pub. by Association for Asian eviction of the indigenous peoples from their land but
Studies [1995]. The BNCT made a Bontok and Subanon also to the reduction and destruction of their natural
ethnography, a history of Sulu genealogy, and a environment.94
compilation on unhispanized peoples in northern The Aquino government signified a total shift from the policy
Luzon.—Owen J. Lynch, Jr., The Philippine Colonial of integration to one of preservation. Invoking her powers under the
Dichotomy: Attraction and Disenfranchisement,63 P.L.J. 139- Freedom Constitution, President Aquino created the Office of
140 [1988]. Muslim Affairs, Office for Northern Cultural Communities and
the Office for Southern Cultural Communities all under the Office
It was in the 1973 Constitution that the State adopted the of the President.95
following provision:
The 1987 Constitution carries at least six (6) provisions laws draws its meaning from the subsistence and highly
which insure the right of tribal Filipinos to preserve their way of collectivized mode of economic production. The
life.96 Kalingas, for instance, who are engaged in team
occupation like hunting, foraging for forest products,
This Constitution goes further than the 1973 Constitution by and swidden farming found it natural that forest areas,
expressly guaranteeing the rights of tribal Filipinos to their swidden farms, orchards, pasture and burial grounds
ancestral domains and ancestral lands. By recognizing their right should be communally-owned.102 For the Kalingas,
to their ancestral lands and domains, the State has effectively everybody has a common right to a common economic
upheld their right to live ina culturedistinctly their own. base. Thus, as a rule, rights and obligations to the land
are shared in common.
1. 2.Their Concept of Land Although highly bent on communal ownership, customary law on
land also sanctions individual ownership. The residential lots
and terrace rice farms are governed by a limited system of
Indigenous peoples share distinctive traits that set them apart
individual ownership. It is limited because while the
from the Filipino mainstream. They are non-Christians.
individual owner has the right to use and dispose of the
They live in less accessible, marginal, mostly upland
property, he does not possess all the rights of an
areas. They have a system of self-government not
exclusive and full owner as defined under our Civil
dependent upon the laws of the central administration
Code.103 Under Kalinga customary law, the alienation of
of the Republic of the Philippines. They follow ways of
individually-owned land is strongly discouraged except
life and customs that are perceived as different from
in marriage and succession and except to meet sudden
those of the rest of the population.97 The kind of
financial needs due to sickness, death in the family, or
response the indigenous peoples chose to deal with
loss of crops.104 Moreover, land to be alienated should
colonial threat worked well to their advantage by making
first be offered to a clan-member before any village-
it difficult for Western concepts and religion to erode
member can purchase it, and in no case may land be sold
their customs and traditions. The “infieles societies”
to a non-member of the ili.105
which had become peripheral to colonial administration,
Land titles do not exist in the indigenous peoples’ economic
represented, from a cultural perspective, a much older
and social system. The concept of individual land ownership under
base of archi-pelagic culture. The political systems were
the civil law is alien to them. Inherently colonial in origin, our
still structured on the patriarchal and kinship oriented
national land laws and governmental policies frown upon
arrangement of power and authority. The economic
indigenous claims to ancestral lands. Communal ownership is
activities were governed by the concepts of an ancient
looked upon as inferior, if not inexistent.106
communalism and mutual help. The social structure
which emphasized division of labor and distinction of III. THE IPRA IS A NOVEL PIECE OF
functions, not status, was maintained. The cultural styles LEGISLATION.
and forms of life portraying the varieties of social It was to address the centuries-old neglect of the Philippine
courtesies and ecological adjustments were kept indigenous peoples that the Tenth Congress of the
constantly vibrant.98 Philippines, by their joint efforts, passed and
Land is the central element of the indigenous peoples’ approved R.A. No. 8371, the Indigenous Peoples Rights Act
existence.There is no traditional concept of permanent, (IPRA) of 1997. The law was a consolidation of two
individual, land ownership. Among the Igorots, Bills—Senate Bill No. 1728 and House Bill No. 9125.
ownership of land more accurately applies to the tribal Principally sponsored by Senator Juan M. Flavier,107 Senate
right to use the land or to territorial control. The people Bill No. 1728 was a consolidation of four proposed
are the secondary owners or stewards of the land and measures referred to the Committees on Cultural
that if a member of the tribe ceases to work, he loses his Communities, Environment and Natural Resources,
claim of ownership, and the land reverts to the beings of Ways and Means, as well as Finance. It adopted almost
the spirit world who are its true and primary owners. en toto the comprehensive version of Senate Bill Nos.
Under the concept of “trusteeship,” 1476 and 1486 which was a result of six regional
the right to possess the land does not only belong to the consultations and one national consultation with indigenous peoples
present generation but the future onesas well. 99 nationwide.108 At the Second Regular Session of the Tenth
Customary law on land rests on the traditional belief Congress, Senator Flavier, in his sponsorship speech,
that no one owns the land except the gods and spirits, gave a background on the situation of indigenous
and that those who work the land are its mere peoples in the Philippines, to wit:
stewards.100 Customary law has a strong preference for communal “The Indigenous Cultural Communities, including the
ownership, which could either be ownership by a group of Bangsa Moro, have long suffered from the dominance
individuals or families who are related by blood or by and neglect of government controlled by the majority.
marriage,101 or ownership by residents of the same Massive migration of their Christian brothers to their
locality who may not be related by blood or marriage. homeland shrunk their territory and many of the tribal
The system of communal ownership under customary Filipinos were pushed to the hinterlands. Resisting the
intrusion, dispossessed of their ancestral land and with “xxx the executive department of government since the
the massive exploitation of their natural resources by the American occupation has not implemented the policy.
elite among the migrant population, they became In fact, it was more honored in its breach than in its
marginalized. And the government has been an observance, its wanton disregard shown during the
indispensable party to this insidious conspiracy against period unto the Commonwealth and the early years of
the Indigenous Cultural Communities (ICCs). It the Philippine Republic when government organized
organized and supported the resettlement of people to and supported massive resettlement of the peopletothe
their ancestral land, which was massive during the land of the ICCs.”
Commonwealth and early years of the Philippine Senate Bill No. 1728 seeks to genuinely recognize the IPs
Republic. Pursuant to the Regalian Doctrine first right to own and possess their ancestral land. The bill
introduced to our system by Spain through the Royal was prepared also under the principle of parens
Decree of 13 February 1894 or the Maura Law, the patriae inherent in the supreme power of the State and
government passed laws to legitimize the wholesale deeply embedded in Philippine legal tradition. This
landgrabbing and provide for easy titling or grant of principle mandates that persons suffering from serious
lands to migrant homesteaders within thetraditionalareas disadvantage or handicap, which places them in a
of the ICCs.”109 position of actual inequality in their relation or
Senator Flavier further declared: transaction with others, are entitled to the protection of
The IPs are the offsprings and heirs of the peoples who the State.
have first inhabited and cared for the land long before Senate Bill No. 1728 was passed on Third Reading by
any central government was established. Their ancestors twenty-one (21) Senators voting in favor and none against, with no
had territories over which they ruled themselves and abstention.112
related with other tribes. These territories—the land— House Bill No. 9125 was sponsored by Rep. Zapata,
include people, their dwelling, the mountains, the water, Chairman of the Committee on Cultural Communities.
the air, plants, forest and the animals. This is their It was originally authored and subsequently presented
environment in its totality. Their existence as indigenous and defended on the floor by
peoples is manifested in their own lives through political, Rep. GregorioAndolanaof North Cotabato.113
economic, socio-cultural and spiritual practices. The IPs Rep.Andolana’s sponsorshipspeech reads as follows:
culture is the living and irrefutableproof to this. ‘This Representation, as early as in the 8th Congress,
filed a bill of similar implications that would promote,
Their survival depends on securing or acquiring land recognize the rights of indigenous cultural communities
rights; asserting their rights to it; and depending on it. within the framework of national unity and
Otherwise, IPs shall cease to exist asdistinct peoples.”110 development.
To recognize the rights of the indigenous peoples Apart from this, Mr. Speaker, is our obligation, the
effectively, Senator Flavier proposed a bill based on two government’s obligation to assure and ascertain that
postulates: (1) the concept of native title; and (2) these rights shall be well-preserved and the cultural
theprincipleofparens patriae. traditions as well as the indigenous laws that remained
According to Senator Flavier, “[w]hile our legal long before this Republic was established shall be
tradition subscribes to the Regalian Doctrine reinstated preserved and promoted. There is a need, Mr. Speaker,
in Section 2, Article XII of the 1987 Constitution,” our to look into these matters seriously and early approval of
“decisional laws” and jurisprudence passed by the State the substitute bill shall bring into reality the aspirations,
have “made exception to the doctrine.” This exception the hope and the dreams of more than 12 million
was first laid down in the case of Cariño v. Insular Filipinos that they be considered in the mainstream of
Government where: the Philippine society as we fashion for the year 2000.”114
“xxx the court has recognized long occupancy of land by Rep. Andolana stressed that H.B. No. 9125 is based on
an indigenous member of the cultural communities as the policy of preservation as mandated in the
one of private ownership, which, in legal concept, is Constitution. He also emphasized that the rights of IPs
termed “native title.” This ruling has not been to their land was enunciated in Cariño v. Insular
overturned. In fact, it was affirmed insubsequent Government which recognized the fact that they had
cases.”111 vested rights prior to the establishment of the Spanish
Following Cariño, the State passed Act No. 926, Act No. and American regimes.115
2874, CA. No. 141, P.D. 705, P.D. 410, P.D. 1529, R.A. After exhaustive interpellation, House Bill No. 9125, and
6734 (the Organic Act for the Autonomous Region of its corresponding amendments, was approved on Second Reading
Muslim Mindanao). These laws, explicitly or implicitly, with no objections.
and liberally or restrictively, recognized “native title” or
“private right” and the existence of ancestral lands and
domains. Despite the passage of these laws, however,
Senator Flavier continued:
IV. THE PROVISIONS OF THE IPRA by war, force majeure or displacement by force, deceit,
stealth or as a consequence of government projects or
DO NOT CONTRAVENE THE
any other voluntary dealings with government and/or
CONSTITUTION. private individuals or corporations. Ancestral domains
The IPRA grants to ICCs/IPs a distinct kind of ownership over comprise lands, inland waters, coastal areas, and natural resources
ancestral domains and ancestral lands. Ancestral lands are not therein and includes ancestral lands, forests, pasture, residential,
the same as ancestral domains. These are defined in agricultural, and other lands individually owned whether alienable
Section 3 [a] and [b] ofthe IndigenousPeoples Right or not, hunting grounds, burial grounds, worship areas, bodies of
Act,viz.: water, mineral and other natural resources. They also include
“Sec. 3 a) Ancestral Domains.—Subject to Section 56 lands which may no longer be exclusively occupied by
hereof, refer to all areas generally belonging to ICCs/IPs ICCs/IPs but from which they traditionally had access
comprising lands, inland waters, coastal areas, and to for their subsistence and traditional activities,
natural resources therein, held under a claim of particularly the home ranges of ICCs/IPs who are still
ownership, occupied or possessed by ICCs/IPs by nomadic and/or shifting cultivators.116
themselves or through their ancestors, communally or Ancestral lands are lands held by the ICCs/IPs under
individually since time immemorial, continuously to the the same conditions as ancestral domains except that
present except when interrupted by war, force majeure these are limited to lands and that these lands are not
or displacement by force, deceit, stealth or as a merely occupied and possessed but are also utilized by
consequence of government projects or any other the ICCs/IPs under claims of individual or traditional
voluntary dealings entered into by government and group ownership. These lands include but are not limited
private individuals/corporations, and which are to residential lots, rice terraces or paddies, private
necessary to ensure their economic, social and cultural forests, swidden farms and tree lots.117
welfare. It shall include ancestral lands, forests, pasture,
residential, agricultural, and other lands individually The procedures for claiming ancestral domains and
owned whether alienable and disposable or otherwise, lands are similar to the procedures embodied in
hunting grounds, burial grounds, worship areas, bodies Department Administrative Order (DAO) No. 2, series
of water, mineral and other natural resources, and lands of 1993, signed by then Secretary of the Department of
which may no longer be exclusively occupied by Environment and Natural Resources (DENR) Angel
ICCs/IPs but from which they traditionally had access Alcala.118 DAO No. 2 allowed the delineation of
to for their subsistence and traditional activities, ancestral domains by special task forces and ensured the
particularly the home ranges of ICCs/IPs who are still issuance of Certificates of Ancestral Land Claims
nomadic and/or shifting cultivators; (CALC’s) and Certificates of Ancestral Domain Claims
(CADC’s) toIPs.
The identification and delineation of these ancestral
1. b)Ancestral Lands.—Subject to Section 56 domains and lands is a power conferred by the IPRA on
hereof, refers to land occupied, possessed and the National Commission on Indigenous Peoples
utilized by individuals, families and clans who (NCIP).119 The guiding principle in identification and
are members of the ICCs/IPs since time delineation is self-delineation.120 This means that the
immemorial, by themselves or through their ICCs/IPs have a decisive role in determining the
predecessors-in-interest, under claims of boundaries of theirdomainsand in all the activities
individual or traditional group ownership, pertinent thereto.121
continuously, to the present except when The procedure for the delineation and recognition
interrupted by war, force majeure or of ancestral domains is set forth in Sections 51 and 52 of
displacement by force, deceit, stealth, or as a the IPRA. The identification, delineation and
consequence of government projects and certification of ancestral lands is in Section53 of saidlaw.
other voluntary dealings entered into by Upon due application and compliance with the
government and private procedure provided under the law and upon finding by
individuals/corporations, including, but not the NCIP that the application is meritorious, the NCIP
limited to, residential lots, rice terraces or shall issue a Certificate of Ancestral Domain Title
paddies, private forests, swiddenfarms and (CADT) in the name of the community
tree lots.” concerned.122 The allocation of lands within the ancestral
domain to any individual or indigenous corporate (family
Ancestral domains are all areas belonging to ICCs/IPs held or clan) claimants is left to the ICCs/IPs concerned to
under a claim of ownership, occupied or possessed by decide in accordance with customs and
ICCs/IPs by themselves or through their ancestors, traditions.123 With respect to ancestral lands outside the
communally or individually since time immemorial, ancestral domain, the NCIP issues a Certificate of
continuously until the present, except when interrupted Ancestral Land Title (CALT).124
CADT’s and CALT’s issued under the IPRA shall land in Baguio Municipality, Benguet Province. He
be registered by the NCIP before the Register of Deeds claimed that this land had been possessed and occupied
in the place where the property is situated.125 by his ancestors since time immemorial; that his
grandfather built fences around the property for the
1. (1)Right to Ancestral Domains and Ancestral Lands: holding of cattle and that his father cultivated some parts
How Acquired of the land. Cariño inherited the land in accordance with
Igorot custom. He tried to have the land adjusted under
the Spanish land laws, but no document issued from the
The rights of the ICCs/IPs to their ancestral domains
Spanish Crown.131 In 1901, Cariño obtained a
and ancestral lands may be acquired in two modes: (1) by
possessory title to the land under the Spanish Mortgage
native title over both ancestral lands and domains; or (2) by
Law.132 The North American colonial government,
Torrens title under the Public Land Act and the Land
however, ignored his possessory title and built a public
Registration Act with respect to ancestral lands only.
road on the land prompting him to seek a Torrens title
to his property in the land registration court. While his
1. (2)The Concept of Native Title petition was pending, a U.S. military reservation133 was
proclaimed over his land and, shortly thereafter, a
Native title is defined as: military detachment was detailed on the property with
“Sec. 3 [1]. Native Title—refers to pre-conquest rights to orders to keep cattle and trespassers, including Cariño,
lands and domains which, as far back as memory off the land.134
reaches, have been held under a claim In 1904, the land registration court granted Cariño’s
of private ownership by ICCs/IPs, have never been application for absolute ownership to the land. Both the
public lands and are thus indisputably presumed to have Government of the Philippine Islands and the U.S.
been held that way since before the Spanish Government appealed to the C.F.I. of Benguet which
Conquest.”126 reversed the land registration court and dismissed
Native title refers to ICCs/IPs’ preconquest rights to Cariño’s application. The Philippine Supreme
lands and domains held under a claim of private Court135 affirmed the C.F.I, by applying
ownership as far back as memory reaches. These lands the Valenton ruling. Cariño took the case to the U.S.
are deemed never to have been public lands and are Supreme Court.136 On one hand, the Philippine
indisputably presumed to have been held that way since government invoked the Regalian doctrine and
before the Spanish Conquest. The rights of ICCs/IPs to contended that Cariño failed to comply with the
their ancestral domains (which also include provisions of the Royal Decree of June 25, 1880, which
ancestral lands) by virtue of native title shall be required registration of land claims within a limited
recognized and respected.127 Formal recognition, when period of time. Cariño, on the other, asserted that he was
solicited by ICCs/IPs concerned, shall be embodied in a the absolute owner of the land jure gentium, and that the
Certificate of Ancestral Domain Title (CADT), which land neverformed part of the public domain.
In a unanimous decision written by Justice Oliver
shall recognize the title of the concerned ICCs/IPs over Wendell Holmes, theU.S.Supreme Court held:
the territories identified and delineated.128 “It is true that Spain, in its earlier decrees, embodied the
Like a Torrens title, a CADT is evidence of private universal feudal theory that all lands were held from the
ownership of land by native title. Native title, however, is Crown, and perhaps the general attitude of conquering
a right of private ownership peculiarly granted to nations toward people not recognized as entitled to the
ICCs/IPs over their ancestral lands and domains. The treatment accorded to those in the same zone of
IPRA categorically declares ancestral lands and domains civilization with themselves. It is true, also, that in legal
held by native title as never to have been public land. theory, sovereignty is absolute, and that, as against
Domains and lands held under native title are, therefore, foreign nations, the United States may assert, as Spain
indisputably presumed to have never been public lands asserted, absolute power. But it does not follow that, as
and are private. against the inhabitants of the Philippines, the United
States asserts that Spain had such power. When theory is
1. (a)Cariño v. Insular Government129 left on one side, sovereignty is a question of strength,
and may vary in degree. How far a new sovereign shall
insist upon the theoretical relation of the subjects to the
The concept of native title in the IPRA was taken from
head in the past, and how far it shall recognize actual
the 1909 case of Cariño v. Insular
facts, are mattersfor it to decide.”137
Government.130 Cariño firmly established a concept of
The U.S. Supreme Court noted that it need not accept
private land title that existed irrespective of any royal
Spanish doctrines. The choice was with the new
grant from the State.
colonizer. Ultimately, the matter had tobe decidedunder
In 1903, Don Mateo Cariño, an Ibaloi, sought to
U.S. law.
register with the land registration court 146 hectares of
The Cariño decision largely rested on the North (2) under a claim of private ownership. Land held by this
American constitutionalist’s concept of “due process” as title is presumed to “never have beenpublic land.”
well as the pronounced policy “‘to do justice to the Against this presumption, the U.S. Supreme Court
natives.”138 It was based on the strong mandate extended analyzed the Spanish decrees upheld in the 1904 decision
to the Islands via the Philippine Bill of 1902 that “No of Valenton v. Murciano. The U.S. Supreme Court
law shall be enacted in said islands which shall deprive found no proof that the Spanish decrees did not honor
any person of life, liberty, or property without due native title. On the contrary, the decrees discussed
process of law, or deny to any person therein the equal in Valenton appeared to recognize that the natives owned
protection of the laws.” The court declared: some land, irrespective of any royal grant. The Regalian
“The acquisition of the Philippines was not like the doctrine declared in the preamble of the Recopilacion was
settlement of the white race in the United States. all “theory and discourse” and it was observed that titles
Whatever consideration may have been shown to the were admitted to existbeyond thepowers of the
North American Indians, the dominant purpose of the Crown,viz.:
whites in America was to occupy land. It is obvious that, “If the applicant’s case is to be tried by the law of Spain, we do
however stated, the reason for our taking over the not discover such clear proof that it was bad by that law as to
Philippines was different. No one, we suppose, would satisfy us that he does not own the land. To begin with, the older
deny that, so far as consistent with paramount decrees and laws cited by the counsel for the plaintiff in error seem
necessities, our first object in the internal administration to indicate pretty clearly that the natives were recognized as
of the islands is to do justice to the natives, not to exploit owning some lands, irrespective of any royal grant. In other words,
their country for private gain. By the Organic Act of July Spain did not assume to convert all the native inhabitants of
1, 1902, chapter 1369, section 12 (32 Statutes at Large, the Philippines into trespassers or even into tenants at
691), all the property and rights acquired there by the will. For instance, Book 4, title 12, Law 14 of
United States are to be administered ‘for the benefit of the Recopilacion de Leyes de las Indias, cited for a contrary
the inhabitants thereof.’ It is reasonable to suppose that conclusion in Valenton v. Murciano, 3 Philippine 537,
the attitude thus assumed by the United States with while it commands viceroys and others, when it seems
regard to what was unquestionably its own is also its proper, to call for the exhibition of grants, directs them
attitude in deciding what it will claim for its own. The to confirm those who hold by good grants or justa
same statute made a bill of rights, embodying the prescripcion. It is true that it begins by the characteristic assertion
safeguards of the Constitution, and, like the of feudal overlordship and the origin of all titles in the King or his
Constitution, extends those safeguards to all. It provides predecessors. That was theory and discourse. The fact was that
that ‘no law shall be enacted in said islands which shall titles were admitted to exist that owed nothing to the powers of
deprive any person of life, liberty, or property without Spain beyond this recognition in their books” (Emphasis
due process of law, or deny to any person therein the supplied).141
equal protection of the laws.’ In the light of the The court further stated that the Spanish “adjustment”
declaration that we have quoted from section 12, it is proceedings never held sway over unconquered
hard to believe that the United States was ready to territories. The wording of the Spanish laws were not
declare in the next breath that “any person” did not framed in a manner as to convey to the natives that
embrace the inhabitants of Benguet, failure to register what to them has always been their
or that it meant by “property” only that which had own would mean loss of such land. The registration
become such by ceremonies of which presumably a large requirement was “not to confer title, but simply to
part of the inhabitants never had heard, and that it establish it”; it was “not calculated to convey to the
proposed to treat as public land what they, by native mind of an Igorot chief the notion that ancient family
custom and by long association,—of the profoundest possessions were in danger, if he had read every word
factors in human thought,—regarded as their own.”139 of it.”
The Courtwent further: By recognizing this kind of title, the court
“[E]very presumption is and ought to be against the clearly repudiated the doctrine of Valenton. It was frank
government in a case like the present. It might, perhaps, be enough, however, to admit the possibility that the
proper and sufficient to say that when, as far back as testimony or applicant might have been deprived of his land under
memory goes, the land has been held by individuals under a claim Spanish law because of the inherent ambiguity of the
of private ownership, it will be presumed to have been held in the decrees and concomitantly, the various interpretations
same way from before the Spanish conquest, and never to have been which may be given them. But precisely because of the
public land. Certainly in a case like this, if there is doubt ambiguity and of the strong “due process mandate” of the
or ambiguity in the Spanish law, we ought to give the Constitution, the court validated this kind of title.142 This title
applicant the benefit of the doubt.”140 was sufficient, even without government administrative
The court thus laid down the presumption of a certain title action, and entitled the holder to a Torrens certificate.
held (1) as far back as testimony or memory went, and Justice Holmes explained:
“It will be perceived that the rights of the applicant title” of the American Indians.148This is not surprising,
under the Spanish law present a problem not without according to Prof. Lynch, considering that during the
difficulties for courts of a legal tradition. We have American regime, government policy towards ICCs/IPs
deemed it proper on that account to notice the possible was consistently made in reference to native
effect of the change of sovereignty and the act of Americans.149 This was clearly demonstrated in the case
Congress establishing the fundamental principles now to of Rubi v. Provincial Board of Mindoro.150
be observed. Upon a consideration of the whole case we In Rubi, the Provincial Board of Mindoro adopted a
are of the opinion that law and justice require that the Resolution authorizing the provincial governor to
applicant should be granted what he seeks, and should remove the Mangyans from their domains and place
not be deprived of what, by the practice and belief of them in a permanent reservation in Sitio Tigbao, Lake
those among whom he lived, was his property, through Naujan. Any Mangyan who refused to comply was to be
a refined interpretation of an almost forgotten law of imprisoned. Rubi and some Mangyans, including one
Spain.”143 who was imprisoned for trying to escape from the
Thus, the court ruled in favor of Cariño and ordered the reservation, filed for habeas corpus claiming deprivation
registrationof the148hectares inBaguio Municipality in of liberty under the Board Resolution. This Court denied
hisname.144 the petition on the ground of police power. It upheld
Examining Cariño closer, the U.S. Supreme Court government policy promoting the idea that a permanent
did not categorically refer to the title it upheld as “native settlement was the only successful method for educating
title.” It simply said: the Mangyans, introducing civilized customs, improving
“The Province of Benguet was inhabited by a tribe that the their health and morals, and protecting the public forests
Solicitor-General, in his argument, characterized as a savage tribe in which they roamed.151 Speaking throughJustice
that never was brought under the civil or military government of the Malcolm, the court said:
Spanish Crown. It seems probable, if not certain, that the Spanish “Reference was made in the President’s instructions to
officials would not have granted to anyone in that province the the Commission to the policy adopted by the United
registration to which formerly the plaintiff was entitled by the States for the Indian Tribes. The methods followed by
Spanish Laws, and which would have made his title beyond the Government of the Philippine Islands in its dealings
question good. Whatever may have been the technical with the so-called non-Christian people is said, on
position of Spain it does not follow that, in the view of argument, to be practically identical with that followed
the United States, he had lost all rights and was a mere by the United States Government in its dealings with the
trespasser when the present government seized his land. Indian tribes. Valuable lessons, it is insisted, can be
The argument to that effect seems to amount to a denial derived byaninvestigation of the American-Indian
of native titles through an important part of the Island policy. From the beginning of the United States, and
of Luzon, at least, for the want of ceremonies which the even before, the Indians have been treated as “in a state
Spaniards would not have permitted and had not the of pupilage.” The recognized relation between the
power to enforce.”145 Government of the United States and the Indians may
This is the only instance when Justice Holmes used the be described as that of guardian and ward. It is for the
term “native title” in the entire length of Congress to determine when and how the guardianship
the Cariño decision. It is observed that the widespread shall be terminated. The Indians are alwayssubject to
use of the term “native title” may be traced to Professor theplenary authority ofthe United States.152
Owen James Lynch, Jr., a Visiting Professor at the x x x.
University of the Philippines College of Law from the As to the second point, the facts in the Standing Bear
Yale University Law School. In 1982, Prof. Lynch case and the Rubi case are not exactly identical. But even
published an article in the Philippine Law admitting similarity of facts, yet it is known to all that
Journal entitled Native Title, Private Right and Tribal Land Indian reservations do exist in the United States, that
Law.146 This article was made after Professor Lynch Indians have been taken from different parts of the
visited over thirty tribal communities throughout the country and placed on these reservations, without any
country and studied the origin and development of previous consultation as to their own wishes, and that,
Philippine land laws.147 He discussed Cariño extensively when once so located, they have been made to remain
and used the term “native title” to refer to Cariño’s title on the reservation for their own good and for the general
as discussed and upheld by the U.S. Supreme Court in good of the country. If any lesson can be drawn from
said case. the Indian policy of the United States, it is that the
determination of this policy is for the legislative and
1. (b)Indian Title executive branches of the government and that when
once so decided upon, the courts should not interfere to
upset a carefully planned governmental system. Perhaps,
In a footnote in the same article, Professor Lynch stated
just as many forceful reasons exist for the segregation of
that the concept of “native title” as defined by Justice
the Manguianes in Mindoro as existed for the
Holmes in Cariño “is conceptually similar to “aboriginal
segregation of the different Indiantribes in the United extent, impaired. They were admitted to be the rightful
States.”153 occupants of the soil, with a legal as well as just claim to
Rubi applied the concept of Indian land grants or retain possession of it, and to use it according to their
reservations in the Philippines. An Indian reservation is own discretion; but their rights to complete sovereignty,
a part of the public domain set apart by proper authority as independent nations, were necessarily diminished, and
for the use and occupation of a tribe or tribes of their power to dispose of the soil at their own will, to
Indians.154 It may be set apart by an act of Congress, by whomsoever they pleased, was denied by the
treaty, or by executive order, but it cannot be established fundamental principle that discovery gave exclusive
by custom and prescription.155 titleto those who made it.
Indian title to land, however, is not limited to land grants or While the different nations of Europe respected the right of the
reservations. It also covers the “aboriginal right of possession or natives as occupants, they asserted the ultimate dominion to be in
occupancy.”156 The aboriginal right of possession depends themselves; and claimed and exercised, as a consequence of this
on the actual occupancy of the lands in question by the ultimate dominion, a power to grant the soil, while yet in possession
tribe or nation as their ancestral home, in the sense that of the natives. These grants have been understood by all to convey
such lands constitute definable territory occupied a title to the grantees, subject only to the Indian right of
exclusively by the particular tribe or nation. 157 It is a occupancy.”161
right which exists apart from any treaty, statute, or Thus, the discoverer of new territory was deemed to
other governmental action, although in numerous have obtained the exclusive right to acquire Indian land
instances treaties have been negotiated with Indian and extinguish Indian titles. Only to the discoverer—
tribes, recognizing their aboriginal possession and whether to England, France, Spain or Holland—did this
delimiting their occupancy rights or settling and right belong and not to any other nation or private
adjusting theirboundaries.158 person. The mere acquisition of the right nonetheless
American jurisprudence recognizes the Indians’ or native did not extinguish Indian claims to land. Rather, until the
Americans’ rights to land they have held and occupied before the discoverer, by purchase or conquest, exercised its right,
“discovery” of the Americas by the Europeans. The earliest the concerned Indians were recognized as the “rightful
definitive statement by the U.S. Supreme Court on the nature of occupants of the soil, with a legal as well as just claim to
aboriginal title was made in 1823 in Johnson & Graham’s retain possession of it.” Grants made by the discoverer
Lessee v. M'Intosh.159 to her subjects of lands occupied by the Indians were
In Johnson, the plaintiffs claimed the land in held to convey a title to the grantees, subject only to the
question under two (2) grants made by the chiefs of Indian right of occupancy. Once the discoverer
two (2) Indian tribes. The U.S. Supreme Court refused purchased the land from the Indians or conquered them,
to recognize this conveyance, the plaintiffs being it was only then that the discoverer gained an absolute
private persons. The only conveyance that was title unrestricted by Indian rights.
recognized was that made by the Indians to the The court concluded, in essence, that a grant of
government of the European discoverer. Speaking for Indian lands by Indians could not convey a title
the court, Chief Justice Marshall pointed out that the paramount to the title of the United States itself
potentates of the old world believed that they had made tootherparties, saying:
ample compensation to the inhabitants of the new It has never been contended that the Indian title
world by bestowing civilization and Christianity upon amounted to nothing. Their right of possession has never been
them; but in addition, said the court, they found it questioned. The claim of government extends to the complete
necessary, in order to avoid conflicting settlements and ultimate title, charged with this right of possession, and to the
consequent war, to establish the principle that discovery exclusive power of acquiring that right.”162
gives title to the government by whose subjects, or by whose It has been said that the history of America, from its
authority, the discovery was made, against all other European discovery to the present day, proves the universal
governments, which title might be consummated by recognition of this principle.163
possession.160 The exclusion of all other Europeans gave The Johnson doctrine was a compromise. It protected
to the nation making the discovery the sole right of Indian rights and their native lands without having to
acquiring the soil from the natives and establishing invalidate conveyances made by the government to
settlements upon it. As regards the natives, the court many U.S. citizens.164
further stated that: Johnson was reiterated in the case of Worcester v.
“Those relations which were to exist between the Georgia.165 In this case, the State of Georgia enacted a law
discoverer and the natives were to be regulated by requiring all white persons residing within the Cherokee
themselves. The rights thus acquired being exclusive, no nation to obtain a license or permit from the Governor
otherpowercould interpose between them. of Georgia; and any violation of the law was deemed a
In the establishment of these relations, the rights of high misdemeanor. The plaintiffs, who were white
the original inhabitants were, in no instance, entirely missionaries, did not obtain said license and were thus
disregarded; but were necessarily, to a considerable charged with a violation ofthe Act.
The U.S. Supreme Court declared the Act as Congress. The whole intercourse between the United
unconstitutional for interfering with the treaties States and this nation is, by our Constitution and laws,
established between the United States and the Cherokee vestedin the government of the United States.”168
nation as well as the Acts of Congress regulating The discovery of the American continent gave title to
intercourse with them. It characterized the relationship the government of the discoverer as against all other
between the United States government and the Indians European governments. Designated as the naked
as: fee,169 this title was to be consummated by possession
“The Indian nations were, from their situation, and was subject to the Indian title of occupancy. The
necessarily dependent on some foreign potentate for the discoverer acknowledged the Indians’ legal and just
supply of their essential wants, and for their protection claim to retain possession of the land, the Indians being
from lawless and injurious intrusions into their country. the original inhabitants of the land. The discoverer
That power was naturally termed their protector. They nonetheless asserted the exclusive right to acquire the
had been arranged under the protection of Great Britain; Indians’ land—either by purchase, “defensive”
but the extinguishment of the British power in their conquest, or cession—and in so doing, extinguish the
neighborhood, and the establishment of that of the Indian title. Only the discoverer could extinguish Indian
United States in its place, led naturally to the declaration, title because it alone asserted ultimate dominion in itself.
on the part of the Cherokees, that they were under the Thus, while the different nations of Europe respected
protection of the United States, and of no other power. the rights of the natives as occupants, they all asserted
They assumed the relation with the United States which the ultimate dominion and title to be in themselves.170
had before subsisted with Great Britain. As early as the 19th century, it became accepted doctrine that
This relation was that of a nation claiming and although fee title to the lands occupied by the Indians when the
receiving the protection of one more powerful, not that colonists arrived became vested in the sovereign—first the
of individuals abandoning their national character,and discovering European nation and later the original 13 States and
submitting as subjects tothelaws of a master.”166 the United States—a right of occupancy in the Indian tribes was
nevertheless recognized. The Federal Government continued
It was the policy of the U.S. government to treat the the policy of respecting the Indian right of occupancy,
Indians as nations with distinct territorial boundaries and sometimes called Indian title, which it accorded the
recognize their right of occupancy over all the protection of complete ownership.171 But this aboriginal
landswithin theirdomains. Thus: Indian interest simply constitutes “permission” from the
“From the commencement of our government Congress whites to occupy the land, and means mere possession
has passed acts to regulate trade and intercourse with the not specifically recognized as ownership by
Indians; which treat them as nations, respect their rights, Congress.172It is clear that this right of occupancy based
and manifest a firm purpose to afford that protection upon aboriginal possession is not a property right.173 It
which treaties stipulate. All these acts, and especially that is vulnerable to affirmative action by the federal
of 1802, which is still in force, manifestly consider the government who, as sovereign, possessed exclusive
several Indian nations as distinct political communities, having power to extinguish the right of occupancy at
territorial boundaries, within which their authority is exclusive, will.174Thus, aboriginal title is not the same as legal
and having a right to all the lands within those boundaries, which title. Aboriginal title rests on actual, exclusive and
is not only acknowledged, but guaranteed by the United States. continuous use and occupancy for a long time. 175It
x x x. entails that land owned by Indian title must be used
“The Indian nations had always been considered as distinct, within the tribe, subject to its laws and customs, and
independent political communities, retaining their original natural cannot be sold to another sovereign government nor to
rights, as the undisputed possessors of the soil from time any citizen.176 Such title as Indians have to possess and
immemorial, with the single exception of that imposed by occupy land is in the tribe, and not in the individual
irresistible power, which excluded them from Indian; the right of individual Indians to share in the
intercourse with any other European potentate than the tribal property usually depends upon tribal membership,
first discoverer of the coast of the particular region the property of the tribe generally beingheld in
claimed: and this was a restriction which those European communal ownership.177
potentates imposed on themselves, as well as on the As a rule, Indian lands are not included in the term
Indians. The very term “nation,” so generally applied to “public lands,” which is ordinarily used to designate such
them, means “a people distinct from others.” x xx.167 lands as are subject to sale or other disposal under
The Cherokee nation, then, is a distinct community, general laws.178 Indian land which has been abandoned
occupying its own territory, with boundaries accurately is deemed to fall into the public domain.179 On the other
described, in which the laws of Georgia can have no hand, an Indian reservation is a part of the public
force, and which the citizens of Georgia have no right to domain set apart for the use and occupation of a tribe of
enter but with the assent of the Cherokees themselves or Indians.180 Once set apart by proper authority, the
in conformity with treaties and with the acts of reservation ceases to be public land, and until the Indian
title is extinguished, no one but Congress can initiate any purchase or grant, belong to the public domain has an
preferential right on, or restrict the nation’s power to exception. This exception would be any land that should
dispose of,them.181 have been in the possession of an occupant and of his
The American judiciary struggled for more than 200 years with predecessors-in-interest since time immemorial. It is this
the ancestral land claims of indigenous Americans.182 And two kind of possession that would justify the presumption
things are clear. First, aboriginal title is that the land had never been part of the public domain
recognized. Second, indigenous property systems are also or that it had been private property even before the
recognized. From a legal point of view, certain benefits Spanish conquest.193 Oh Cho, however, was decided
can be drawn from a comparison of Philippine IPs to under the provisions of the Public Land Act
native Americans.183 Despite the similarities between and Cariño was cited to support the applicant’s claim of
native title and aboriginal title, however, there are at acquisitive prescription under the said Act.
present some misgivings on whether jurisprudence on All these years, Cariño had been quoted out of
American Indians may be cited authoritatively in the context simply to justify long, continuous, open and
Philippines. The U.S. recognizes the possessory rights of adverse possession in the concept of owner of public
the Indians over their land; title to the land, however, is agricultural land. It is this long, continuous, open and
deemed to have passed to the U.S. as successor of the adverse possession in the concept of owner of thirty
discoverer. The aboriginal title of ownership is not years both for ordinary citizens194 and members of the
specifically recognized as ownership by action national cultural minorities195 that converts the land
authorized by Congress.184 The protection of aboriginal from public into private and entitles the registrant to a
title merely guards against encroachment by persons Torrens certificate of title.
other than the Federal Government.185 Although there The private character of ancestral lands and domains as
are criticisms against the refusal to recognize the native laid down in the IPRA is further strengthened by the
Americans’ ownership of these lands,186 the power of option given to individual ICCs/IPs over their
the State to extinguish these titles has remainedfirmly individually-owned ancestral lands. For purposes of
entrenched.187 registration under the Public Land Act and the Land Registration
Under the IPRA, the Philippine State is not barred Act, the IPRA expressly converts ancestral land into public
form asserting sovereignty over the ancestral domains agricultural land which may be disposed of by the State. The
and ancestral lands.188 The IPRA, however, is still in its necessary implication is that ancestral land is private. It,
infancy and any similarities between its application in the however, has to be first converted to public agricultural land
Philippines vis-à-vis American Jurisprudence on simply for registration purposes. To wit:
aboriginal title will depend on the peculiar facts of each “Sec. 12. Option to Secure Certificate of Title Under
case. Commonwealth Act 141, as amended, or the Land Registration
Act 496.—Individual members of cultural communities,
1. (c)Why theCariño doctrine is unique with respect to their individually-owned ancestral lands
who, by themselves or through their predecessors-in-
interest, have been in continuous possession and
In the Philippines, the concept of native title first upheld
occupation of the same in the concept of owner since
in Cariñoand enshrined in the IPRA grants ownership,
time immemorial or for a period of not less than thirty
albeit in limited form, of the land to the ICCs/IPs.
(30) years immediately preceding the approval of this Act
Native title presumes that the land is private and was
and uncontested by the members of the same ICCs/IPs
never public. Cariño is the only case that specifically and
shall have the option to secure title to their ancestral
categorically recognizes native title. The long line of cases citing
lands under the provisions of CommonwealthAct 141,
Cariño did not touch on native title and the private character of
as amended,or theLand Registration Act 496.
ancestral domains and lands. Cariño was cited by the succeeding
For this purpose, said individually-owned ancestral
cases to support the concept of acquisitive prescription under the
lands, which are agricultural in character and actually
Public Land Act which is a different matter altogether. Under
used for agricultural, residential, pasture, and tree
the Public Land Act, land sought to be registered must
farming purposes, including those with a slope of
be public agricultural land. When the conditions specified
eighteen percent (18%) or more, are hereby classified as
in Section 48 [b] of the Public Land Act are complied
alienable and disposable agriculturallands.
with, the possessor of the land is deemed to have
The option granted under this section shall be
acquired, by operation of law, a right to a grant of the
exercised within twenty (20)years from the approval of
land.189 The land ceases to be part of the public
this Act.”196
domain,190 ipso jure,191 and is converted to private
ICCs/IPs are given the option to secure a Torrens
property by the mere lapseor completionof
certificate of title over their individually-owned ancestral
theprescribed statutoryperiod.
lands. This option is limited to ancestral lands only, not
It was only in the case of Oh Cho v. Director of
domains, and such lands must be individually,not
Lands192 that the court declared that the rule that all lands
communally, owned.
that were not acquired from the government, either by
Ancestral lands that are owned by individual members of The 1987 Constitution mandates the State to “protect the
ICCs/IPs who, by themselves or through their rights of indigenous cultural communities to their ancestral lands”
predecessors-in-interest, have been in continuous and that “Congress provide for the applicability of customary laws
possession and occupation of the same in the concept of x x x in determining the ownership and extent of ancestral
owner since time immemorial197 or for a period of not domain.”202 It is the recognition of the ICCs/IPs distinct rights of
less than 30 years, which claims are uncontested by the ownership over their ancestral domains and lands that breathes life
members of the same ICCs/IPs, may be registered under into this constitutional mandate.
CA. 141, otherwise known as the Public Land Act, or Registration under the Public Land Act and Land
Act 496, the Land Registration Act. For purposes of Registration Act recognizes the concept of ownership
registration, the individuallyowned ancestral lands are under the civil law. This ownership is based on adverse
classified as alienable and disposable agricultural lands of possession for a specified period, and harkens to Section
the public domain, provided, they are agricultural in 44 of the Public Land Act on administrative
character and are actually used for agricultural, legalization (free patent) of imperfect or incomplete
residential, pasture and tree farming purposes. These titles and Section 48 (b) and (c) of the same Act on the
lands shall be classified as public agricultural lands judicial confirmation of imperfector incomplete titles.
regardless of whether they have a slopeof 18% or more. Thus:
The classification of ancestral land as public “Sec. 44. Any natural-born citizen of the Philippines
agricultural land is in compliance with the requirements who is not the owner of more than twenty-four hectares
of the Public Land Act and the Land Registration Act. and who since July fourth, 1926 or prior thereto, has
CA. 141, the Public Land Act, deals specifically with continuously occupied and cultivated, either by himself
lands of the public domain.198 Its provisions apply to or through his predecessors-in-interest, a tract or tracts
those lands “declared open to disposition or concession” of agricultural public lands subject to disposition, or who
xxx “which have not been reserved for public or quasi- shall have paid the real estate tax thereon while the same
public purposes, nor appropriated by the Government, has not been occupied by any person shall be entitled,
nor in any manner become private property, nor those under the provisions of this chapter, to have a free
on which a private right authorized and recognized by patent issued to him for such tract or tracts of such land
this Act or any other valid law x xx or which having been not to exceed twenty-four hectares.
reserved or appropriated, have ceased to be so.”199 Act A member of the national cultural minorities who has
496, the Land Registration Act, allows registration only continuously occupied and cultivated, either by himself or through
of private lands and public agricultural lands. Since his predecessors-in-interest, a tract or tracts of land, whether
ancestral domains and lands are private, if the ICC/IP wants to disposable or not since July 4, 1955, shall be entitled to the right
avail of the benefits of CA. 141 and Act 496, the IPRA itself granted in the preceding paragraph of this section: Provided, That
converts his ancestral land, regardless of whether the land has a at the time he files his free patent application he is not the owner of
slope of eighteen per cent (18%) or over, 200fromprivate to any real property secured or disposable under the provision of the
publicagricultural land forproperdisposition. Public Land Law.203
The option to register land under the Public Land Act x x x.
and the Land Registration Act has nonetheless a limited “Sec. 48. The following described citizens of the
period. This option must be exercised within twenty (20) Philippines, occupying lands of the public domain or
years from October 29, 1997, the dateof approvalof claiming to own any such lands or an interest therein,
theIPRA. but whose titles have not been perfected or completed,
Thus, ancestral lands and ancestral domains are not part of may apply to the Court of First Instance of the province
the lands of the public domain. They are private and belong to the where the land is located for confirmation of their claims
ICCs/IPs. Section 3 of Article XII on National Economy and the issuance of a certificate of titletherefor, under
and Patrimony of the 1987 Constitution classifies lands theLand Registration Act,to wit:
of the public domain into four categories: (a) agricultural,
(b) forest or timber, (c) mineral lands, and (d) national 1. (a)[perfectionofSpanish titles] x x x.
parks. Section 5 of the same Article XII mentions ancestral 2. (b)Those who by themselves or through their
lands and ancestral domains but it does not classify them predecessors-in-interest have been in open,
under any of the said four categories. To classify them as continuous, exclusive, and notorious
public lands under any one of the four classes will render possession and occupation of agricultural
the entire IPRA law a nullity. The spirit of the IPRA lies lands of the public domain, under a bona fide
in the distinct concept of ancestral domains and claim of acquisition or ownership, for at least
ancestral lands. The IPRA addresses the major problem thirty years immediately preceding the filing
of the ICCs/IPs which is loss of land. Land and space of the application for confirmation of title
are of vital concern in terms of sheer survival of except when prevented by war or force
theICCs/IPs.201 majeure. These shall be conclusively
presumed to have performed all the
conditions essential to a Government grant ancestral domains are the ICCs/IPs private but
and shall be entitled to a certificate of title community property which belongs to all generations
under the provisions of this Chapter. and therefore cannot be sold, disposed or destroyed. It
likewise covers sustainable traditional resource rights.”
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
1. (c)Members of the national cultural minorities who by
are the ICCs/IPs private but community property. It is private
themselves or through their predecessors-in-interest
simply because it is not part of the public domain. But its private
have been in open, continuous, exclusive and notorious
character ends there. The ancestral domain is owned in common by
possession and occupation of lands of the public
the ICCs/IPs and not by one particular person. The IPRA itself
domain suitable to agriculture, whether disposable or
provides that areas within the ancestral domains,
not, under a bona fide claim of ownership for at least
whether delineated or not, are presumed to be
30 years shall be entitled to the rights granted in sub-
communally held.209 These communal rights, however, are not
section (b) hereof.”204
exactly the same as co-ownership rights under the Civil
Code.210 Co-ownership gives any co-owner the right to
Registration under the foregoing provisions presumes demand partition of the property held in common. The
that the land was originally public agricultural land but Civil Code expressly provides that “[n]o co-owner shall
because of adverse possession since July 4, 1955 (free be obliged to remain in the co-ownership.” Each co-
patent) or at least thirty years (judicial confirmation), the owner may demand at any time the partition of the thing
land has become private. Open, adverse, public and in common, insofar as his share is concerned.211To allow
continuous possession is sufficient, provided, the such a right over ancestral domains may be
possessor makes proper application therefor. The destructive not only of customary law of the community
possession has to be confirmed judicially or but of the very community itself.212
administratively after which a Torrens title is issued. Communal rights over land are not the same as corporate
A Torrens title recognizes the owner whose name rights over real property, much less corporate condominium
appears in the certificate as entitled to all the rights of rights. A corporation can exist only for a maximum of
ownership under the civil law. The Civil Code of the fifty (50) years subject to an extension of another fifty
Philippines defines ownership in Articles 427, 428 and years in any single instance.213 Every stockholder has the
429. This concept is based on Roman Law which the right to disassociate himself from the
Spaniards introduced to the Philippines through the corporation.214 Moreover, the corporation itself may be
Civil Code of 1889. Ownership, under Roman Law, may dissolved voluntarily or involuntarily.215
be exercised over things or rights. It primarily includes Communal rights to the land are held not only by the present
the right of the owner to enjoy and dispose of the thing possessors of the land but extends to all generations of the
owned. And the right to enjoy and dispose of the thing ICCs/IPs, past, present and future, to the domain. This is the
includes the right to receive from the thing what it reason why the ancestral domain must be kept within the
produces,205the right to consume the thing by its ICCs/IPs themselves. The domain cannot be
use,206 the right to alienate, encumber, transform or even transferred, sold or conveyed to other persons.It belongs
destroy the thing owned,207 and the right to exclude to the ICCs/IPs as a community.
from the possession of the thing owned by any other Ancestral lands are also held under the indigenous concept of
person to whom the owner has not transmitted such ownership. The lands are communal. These lands,
thing.208 however, may be transferred subject to the following
limitations: (a) only to the members of the same
ICCs/IPs; (b) in accord with customary laws and
1. 1.The indigenous Conceptof Ownershipand Customary traditions; and (c) subject to the right of redemption of
Law. the ICCs/IPs for a period of 15 years if the land was
transferred to a non-member of the ICCs/IPs.
Ownership of ancestral domains by native title does not Following the constitutional mandate that
entitle the ICC/IP to a torrens title but to a Certificate “customary law govern property rights or relations in
of Ancestral Domain Title (CADT). The CADT determining the ownership and extent of ancestral
formally recognizes the indigenousconcept of ownership domains,”216 the IPRA, by legislative fiat, introduces a new
of the ICCs/IPs over their ancestral domain. Thus: concept of ownership. This is a concept that has long existed under
“Sec. 5. Indigenous concept of ownership:—Indigenous customary law.217
concept of ownership sustains the view that ancestral Custom, from which customary law is derived, is also recognized
domains and all resources found therein shall serve as under the Civil Code as a source of law.218 Some articles of the
the material bases of their cultural integrity. The Civil Code expressly provide that custom should be
indigenous concept of ownership generally holds that applied in cases where no codal provision is
applicable.219 In other words, in the absence of any natural resources found therein; the right to negotiate
applicable provision in the Civil Code, custom, when the terms and conditions for the exploration of natural
dulyproven, candefine rights and liabilities.220 resources in the areas for the purpose of ensuring
Customary law is a primary, not secondary, source of ecological, environmental protection and the
rights under the IPRA and uniquely applies to conservation measures, pursuant to national and
ICCs/IPs. Its recognition does not depend on the absence of a customary laws; the right to an informed and
specific provision in the civil law. The indigenous concept of intelligent participation in the formulation
ownership under customary law is specifically and implementation of any project,
acknowledged and recognized, and coexists with the civil government or private, that will affect or
law concept and the laws on land titling andland impact upon the ancestral domains and to
registration.221 receive just and fair compensation for any
To be sure, the indigenous concept of ownership exists even damages which they may sustain as a result of
without a paper title. The CADT is merely a “formal the project; and the right to effective
recognition” of native title. This is clear from measures by the government to prevent any
Section11of theIPRA, to wit: interference with, alienation and
“Sec. 11. Recognition of Ancestral Domain Rights.—The rights encroachment upon these rights;
of ICCs/IPs to their ancestral domains by virtue of 3. c)Right to Stay in the Territories.—The right to stay
Native Title shall be recognized and respected. Formal in the territory and not to be removed
recognition, when solicited by ICCs/IPs concerned shall therefrom. No ICCs/IPs will be relocated
be embodied in a Certificate of Ancestral Domain Title, without their free and prior informed
which shall recognize the title of the concerned consent, nor through any means other than
ICCs/IPs over the territories identified and delineated.” eminent domain, x x x;
The moral import of ancestral domain, native land or being 4. d)Right in Case of Displacement.—In case
native is “belongingness” to the land, being people of the displacement occurs as a result of natural
land—by sheer force of having sprung from the land catastrophes, the State shall endeavor to
since time beyond recall, and the faithful nurture of the resettle the displaced ICCs/IPs in suitable
land by the sweat of one’s brow. This is fidelity of areas where they can have temporary life
usufructuary relation to the land—the possession of support systems: x x x;
stewardship through perduring, intimate tillage, and the 5. e)Right to Regulate the Entry of Migrants.—Right to
mutuality of blessings between man and land; from man, regulate the entry of migrant settlers and
care for land; fromthe land, sustenance for man.222 organizations into their domains;
6. f)Right to Safe and Clean Air and Water.—For this
1. 1.The Rights of ICCs/IPs Over Their Ancestral purpose, the ICCs/IPs shall have access to
Domains and Lands integrated systems for the management of
their inland waters and air space;
7. g)Right to Claim Parts of Reservations.—The right
The IPRA grants the ICCs/IPs several rights over their
to claim parts of the ancestral domains which
ancestral domains and ancestral lands. Section 7
have been reserved for various purposes,
provides for the rights over ancestraldomains:
except those reserved and intended for
“Sec. 7. Rights to Ancestral Domains.—The rights of
common and public welfare and service;
ownership and possession of ICCs/IPs to their ancestral
8. h)Right to Resolve Conflict.—Right to resolve land
domains shall be recognized and protected. Such rights
conflicts in accordance with customary laws
include:
of the area where the land is located, and only
in default thereof shall the complaints be
1. a)Right of Ownership.—The right to submitted to amicable settlement and to the
claim ownership over lands, bodies of water Courts of Justice whenever necessary.”
traditionally and actually occupied by ICCs/IPs,
sacred places, traditional hunting and fishing grounds,
Section 8 provides for the rights over ancestral lands:
and all improvements made by them at any time
“Sec. 8. Rights to Ancestral Lands.—The right of
within the domains;
ownership and possession of the ICCs/IPs to their
2. b)Right to Develop Lands and Natural Resources.—
ancestral lands shall he recognized and protected.
Subject to Section 56 hereof, the right to develop,
control and use lands and territories traditionally
occupied, owned, or used; to manage and conserve 1. a)Right to transfer land/property.—Such right shall
natural resources within the territories and uphold the include the right to transfer land or property
responsibilities for future generations; to benefit and rights to/among members of the same
share the profits from allocation and utilization of the ICCs/IPs, subject to customary laws and
traditions of the community concerned.
2. b)Right to Redemption.—In cases where it is five years, and under such terms and conditions as may
shown that the transfer of land/property be provided by law. In cases of water rights for irrigation,
rights by virtue of any agreement or devise, to water supply, fisheries, or industrial uses other than the
a non-member of the concerned ICCs/IPs is development of water power, beneficial use maybe
tainted by the vitiated consent of the themeasure and limit of the grant.
ICCs/IPs, or is transferred for an The State shall protect the nation’s marine wealth in
unconscionable consideration or price, the its archipelagic waters, territorial sea, and exclusive
transferor ICC/IP shall have the right to economic zone, and reserve its use and
redeem the same within a period not enjoymentexclusivelyto Filipino citizens.
exceeding fifteen (15) years from the date of The Congress may, by law, allow small-scale utilization
transfer.” of natural resources by Filipino citizens, as well as cooperative
fish farming, with priority to subsistence fishermen and
Section 7 (a) defines the ICCs/IPs right of ownership over fishworkers in rivers, lakes, bays, and lagoons.
their ancestral domains which covers (a) lands, (b) bodies The President may enter into agreements with
of water traditionally and actually occupied by the foreign-owned corporations involving either technical or
ICCs/IPs, (c) sacred places, (d) traditional hunting and financial assistance for large-scale exploration, development,
fishing grounds, and (e) all improvements made by them and utilization of minerals, petroleum, and other mineral
at any time within the domains. The right of ownership oils according to the general terms and conditions
includes the following rights: (a) the right to develop lands provided by law, based on real contributions to the
and natural resources; (b) the right to stay in the economic growth and general welfare of the country. In
territories; (c) the right to resettlement in case of such agreements, the state shall promote the
displacement; (d) the right to regulate the entry of development and useof local scientific and technical
migrants; (e) the right to safe and clean air and water; (f) resources.
the right to claim parts of the ancestral domains as The President shall notify the Congress of every
reservations; and (g) the right to resolve conflict in contract entered into in accordance with this provision,
accordance with customary laws. within thirty days from its execution.”223
Section 8 governs their rights to
ancestral lands. Unlike ownership over the ancestral All lands of the public domain and all natural resources—waters,
domains, Section 8 gives the ICCs/IPs also the right to minerals, coal, petroleum, and other mineral oils, all
transfer the land or property rights to members of the forces of potential energy, fisheries, forests or timber,
same ICCs/IPs or non-members thereof. This is in wildlife, flora and fauna, and other natural resources—
keeping with the option given to ICCs/IPs to secure a are owned by the State. The Constitution provides that in
Torrens title over the ancestral lands, but notto domains. the exploration, development and utilization of these
natural resources, the State exercises full control and
supervision, and may undertake the same in four (4)
1. 2.The Right of ICCs/IPs to Develop Lands and
modes:
Natural Resources Within the Ancestral Domains
Does Not Deprive the State of Ownership Over the
Natural Resources and Control and Supervision in 1. 1.The State maydirectlyundertake such activities;
their Development and Exploitation. or
2. 2.The State may enter into co-production, joint
venture or production-sharing agreements with
The Regalian doctrine on the ownership, management
Filipinocitizensor qualified corporations;
and utilization of natural resources is declared in Section
3. 3.Congress may, by law, allow small-
2, Article XII of the 1987 Constitution, viz.:
scale utilization of natural resources by
“Sec. 2. All lands of the public domain, waters, minerals, coal,
Filipino citizens;
petroleum, and other mineral oils, all forces of potential energy,
4. 4.For the large-scale exploration, development and
fisheries, forests or timber, wildlife, flora and fauna, and other
utilization of minerals, petroleum and other mineral
natural resources are owned by the State. With the exception
oils, the President may enter into agreements with
of agricultural lands, all other natural resources shall not
foreign-owned corporations involving technical or
be alienated. The exploration, development, and utilization of
financial assistance.
natural resources shall be under the full control and supervision of
the State. The State may directly undertake such activities, or, it
may enter into coproduction, joint venture, or production-sharing As owner of the natural resources, the State is accorded primary
agreements with Filipino citizens, or corporations or associations at power and responsibility in the exploration, development and
least sixty per centum of whose capital is owned by such citizens. utilization of these natural resources. The State may directly
Such agreements may be for a period not exceeding undertake the exploitation and development by itself, or,
twenty-five years, renewable for not more than twenty- it may allow participation by the private sector through
coproduction,224joint venture,225 or production-sharing
agreements.226 These agreements may be for a period of ancestral domains/lands. These rights shall include, but
25 years, renewable for another 25 years. The not limited to, the right over the fruits, the right to
State, through Congress, may allow the small-scale possess, the right to use, right to consume, right to
utilization of natural resources by Filipino citizens. For exclude and right to recover ownership, and the rights
the large-scale exploration of these resources, specifically or interests over land and natural resources. The right to
minerals, petroleum and other mineral oils, the State, recover shall be particularly applied to lands lost through
through the President, may enter into technical and fraud or any form or vitiated consent or transferred for
financial assistance agreements with foreign-owned an unconscionable price.”
corporations. Section 1 of the Implementing Rules gives the
Under the Philippine Mining Act of 1995, (R.A. ICCs/IPs rights of ownership over “lands, waters and
7942) and the People’s Small-Scale Mining Act of 1991 natural resources.” The term “natural resources” is not
(R.A. 7076) the three types of one of those expressly mentioned in Section 7 (a) of the
agreements, i.e., coproduction, joint venture or law. Our Constitution and jurisprudence clearly declare
production-sharing, may apply to both large-scale227 and that the right to claim ownership over land does not
small-scale mining.228“Small-scale mining” refers to necessarily include the right to claim ownership over the
“mining activities which rely heavily on manual labor natural resources found on or under the land.231 The
using simple implements and methods and do not use IPRA itself makes a
explosivesor heavy mining equipment.”229 distinction between land and natural resources. Section 7 (a)
Examining the IPRA, there is nothing in the law that grants speaks of the right of ownership only over the land within the
to the ICCs/IPs ownership over the natural resources within their ancestral domain. It is Sections 7 (b) and 57 of the law that speak
ancestral domains. The right of ICCs/IPs in their ancestral of natural resources, and these provisions, as shall be discussed
domains includes ownership, but this “ownership” is expressly later, do not give the ICCs/IPs the rightof ownership over these
defined and limited in Section 7 (a)as: resources.
“Sec. 7. (a) Right of ownership—The right to claim The constitutionality of Section 1, Part II, Rule III of the
ownership over lands, bodies of water traditionally and Implementing Rules was not specifically and
actually occupied by ICCs/IPs, sacred places, traditional categorically challenged by petitioners. Petitioners
hunting and fishing grounds, and all improvements actually assail the constitutionality of the Implementing
made bythem at anytimewithin the domains”; Rules in general.232Nevertheless, to avoid any confusion
The ICCs/IPs are given the right to claim ownership in the implementation of the law, it is necessary to
over “lands, bodies of water traditionally and actually declare that the inclusion of “natural resources” in
occupied by ICCs/IPs, sacred places, traditional hunting Section 1, Part II, Rule III of the Implementing Rules
and fishing grounds, and all improvements made by goes beyond the parameters of Section 7 (b) of the law
them at any time within the domains.” It will be noted and is contrary to Section 2, Article XII of the 1987
that this enumeration does not mention bodies of water not Constitution.
occupied by the ICCs/IPs, minerals, coal, wildlife, flora
and fauna in the traditional hunting grounds, fish in the 1. (a)The Small-Scale Utilization of Natural Resources
traditional fishing grounds, forests or timber in the sacred In Sec. 7 (b) of the IPRA Is Allowed Under
places, etc. and all other natural resources found within Paragraph 3, Section 2 of Article XII of the
the ancestral domains. Indeed, the right of ownership under Constitution.
Section 7 (a) does not cover “waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, forests or
Ownership over natural resources remain with the State and the
timber, wildlife, flora and fauna and all other natural resources”
IPRA in Section 7 (b) merely grants the ICCs/IPs the right to
enumerated in Section 2,Article XII of the 1987 Constitution
manage them, viz.:
asbelonging to the State.
“Sec. 7 (b) Right to Develop Lands and Natural Resources.—
The non-inclusion of ownership by the ICCs/IPs
Subject to Section 56 hereof, right to develop, control and use
over the natural resources in Section7(a) complies with
lands and territoriestraditionally occupied, owned, or used;
theRegaliandoctrine.
to manage and conserve natural resources within the
territories and uphold the responsibilities for future
1. (a)Section 1, Part II, Rule III of the Implementing generations; to benefit and share the profits from allocation and
Rules Goes Beyond the Parameters of Sec. 7 (a) of the utilizationof the natural resources found therein; the right
IPRA And is Unconstitutional. to negotiate the terms and conditions for the exploration
of natural resources in the areas for the purpose of
The Rules Implementing the IPRA230 in Section 1, Part ensuring ecological, environmental protection and the
II, Rule III reads: conservation measures, pursuant to national and
“Section 1. Rights of Ownership.—ICCs/IPs have rights of customary laws; the right to an informed and intelligent
ownership over lands, waters, and natural resources and all participation in the formulation and implementation of
improvements made by them at any time within the any project, government or private, that will affect or
impact upon the ancestral domains and to receive just that the natural resources within their ancestral domains
and fair compensa-without the permission of the State are conserved for future generations and that the
to which such minerals belong—also cited in H. de “utilization” of these resources must not harm the
Leon, Phil. Constitutional Law, Principles and Cases, ecology and environment pursuant tonationaland
vol. 2, pp. 800-801 [1999]. customary laws.234
The limited rights of “management and use” in Section 7 (b)
tion for any damages which they may sustain as a result must be taken to contemplate small-scale utilization of natural
of the project; and the right to effective measures by the resources as distinguished from large-scale. Small-scale utilization
government to prevent any interference with, alienation of natural resources is expressly allowed in the third paragraph of
and encroachment upon these rights”; Section 2, Article XII of the Constitution “in recognition of
The right to develop lands and natural resources under Section the plight of forest dwellers, gold panners, marginal
7 (b) ofthe IPRA enumerates the following rights: fishermen and others similarly
situated who exploit our natural resources for their daily
1. a)the right to develop, control and use lands and sustenance and survival”235 Section 7 (b) also expressly
territoriestraditionally occupied; mandates the ICCs/IPs to manage and conserve these resources
2. b)the right to manage and conserve natural and ensure environmental and ecological protection within the
resources within the territoriesand uphold the domains, which duties, by their very nature, necessarily reject
responsibilities for future generations; utilization in a large-scale.
3. c)the right to benefit and share the profits from
the allocation and utilization of thenatural 1. (c)The Large-Scale Utilization of Natural Resources
resources found therein; In Section 57 of the IPRA Is Allowed Under
4. d)the right to negotiate the terms and Paragraphs 1 and 4, Section 2, Article XII of
conditions for the exploration of natural the1987 Constitution.
resources for the purpose of ensuring
ecological, environmental protection and the Section 57 of the IPRA provides:
conservation measures, pursuant to national “Sec. 57. Natural Resources within Ancestral Domains.—The
and customarylaws; ICCs/IPs shall have priority rights in the harvesting, extraction,
5. e)the right to an informed and intelligent development or exploitation of any natural resources within the
participation in the formulation and ancestral domains. A non-member of the ICCs/IPs
implementation of any project, government concerned may be allowed to take part in the
or private, that will affect or impact upon the development and utilization of the natural resources for
ancestral domains and to receive just and fair a period of not exceeding twenty-five (25) years
compensation for any damages which they renewable for not more than twenty-five (25) years:
may sustain as a result of the project; Provided, That a formal and written agreement is
6. f)the right to effective measures by the entered into with the ICCs/IPs concerned or that the
government to prevent any interference with, community, pursuant to its own decision-making
alienation andencroachment upon these process, has agreed to allow such operation: Provided
rights.233 finally, That the NCIP may exercise visitorial powers and
take appropriate action to safeguard the rights of the
Ownership over the natural resources in the ancestral domains ICCs/IPs under the same contract.”
remains with the State and the ICCs/IPs are merely granted the Section 57 speaks of the “harvesting, extraction, development
right to “manage and conserve” them for future generations, or exploitation of natural resources within ancestral
“benefit and share” the profits from their allocation and utilization, domains” and “gives the ICCs/IPs ‘priority rights’
and “negotiate the terms and conditions for their exploration” for therein.” The terms “harvesting, extraction, development or
the purpose of “ensuring ecological and environmental protection exploitation” of any natural resources within the ancestral domains
and conservation measures.” It must be noted that the right obviously refer to large-scale utilization. It is utilization not
to negotiate the terms and conditions over the natural merely for subsistence but for commercial or other
resources covers only their exploration which must be extensive use that require technology other than manual
for the purpose of ensuring ecological and labor.236 The law recognizes the probability of requiring
environmental protection of, and conservation measures a non-member of the ICCs/IPs to participate in the
in the ancestral domain. It does not extend to the development and utilization of the natural resources and
exploitation and development ofnatural resources. thereby allows such participation for a period of not
Simply stated, the ICCs/IPs’ rights over the natural resources more than 25 years, renewable for another 25 years. This
take the form of management or stewardship. For the ICCs/IPs may be done on condition that a formal written
may use these resources and share in the profits of their agreement be entered into by the non-member and
utilization or negotiate the terms for their exploration. members of the ICCs/IPs.
At the same time, however, the ICCs/IPs must ensure
Section 57 of the IPRA does not give the ICCs/IPs their domains. The ICCs/IPs must undertake such
the right to “manage and conserve” the natural endeavour always under State supervision or control.
resources. Instead, the law only grants the ICCs/IPs This indicates that the State does not lose control and
“priority rights” in the development or exploitation ownership over the resources even in their exploitation.
thereof. Priority means giving preference. Having Sections 7 (b) and 57 of the law simply give due respect
priority rights over the natural resources does not to the ICCs/IPs who, as actual occupants of the land
necessarily mean ownership rights. The grant of priority where the natural resources lie, have traditionally utilized
rights implies that there is a superior entity that owns these these resources for their subsistence and survival.
resources and this entity has the power to grant preferential rights Neither is the State stripped of ownership and
over the resources to whosoever itself chooses. control of the natural resources by the following
Section 57 is not a repudiation of the Regalian provision:
doctrine. Rather, it is an affirmation of the said doctrine “Section 59. Certification Precondition.—All departments and
that all natural resources found within the ancestral other governmental agencies shall henceforth be strictly
domains belong to the State. It incorporates by enjoined from issuing, renewing or granting any
implication the Regalian doctrine, hence, requires that concession, license or lease, or entering into any
the provision be read in the light of Section 2, Article production-sharing agreement, without prior
XII of the 1987 Constitution. Interpreting Section 2, Article certification from the NCIP that the area affected does
XII of the 1987 Constitution237 in relation to Section 57 of not overlap with any ancestral domain. Such certification
IPRA, the State, as owner of these natural resources, may directly shall only be issued after a field-based investigation is
undertake the development and exploitation of the natural conducted by the Ancestral Domains Office of the area
resources by itself, or in the alternative, it may recognize the priority concerned: Provided, That no certification shall be issued
rights of the ICCs/IPs as owners of the land on which the natural by the NCIP without the free and prior informed and
resources are found by entering into a co-production, joint venture, written consent of the ICCs/IPs concerned: Provided,
or production-sharing agreement with them. The State may further, That no department, government agency or
likewise enter into any of said agreements with a non-member of government-owned or -controlled corporation may
the ICCs/IPs, whether natural or juridical, or enter into issue new concession, license, lease, or production
agreements with foreign-owned corporations involving either sharing agreement while there is a pending application
technical or financial assistance for the large-scale exploration, for a CADT: Provided, finally, That the ICCs/IPs shall
development and utilization of minerals, petroleum, and other have the right to stop or suspend, in accordance with this
mineral oils, or allow such non-member to participate in its Act, any project that has not satisfied the requirement of
agreement with the ICCs/IPs. If the State decides to enter this consultation process.”
into an agreement with a non-ICC/IP member, the Concessions, licenses, lease or production-sharing
National Commission on Indigenous Peoples (NCIP) agreements for the exploitation of natural resources shall
shall ensure that the rights of the ICCs/IPs under the not be issued, renewed or granted by all departments and
agreement shall be protected. The agreement shall be for government agencies without prior certification from
a period of 25 years, renewable for another 25 years. the NCIP that the area subject of the agreement does
To reiterate, in the large-scale utilization of natural resources not overlap with any ancestral domain. The NCIP
within the ancestral domains, the State, as owner of these resources, certification shall be issued only after a field-based
has four (4) options: (1) it may, of and by itself, directly undertake investigation shall have been conducted and the free and
the development and exploitation of the natural resources; or (2) it prior informed written consent of the ICCs/IPs
may recognize the priority rights of the ICCs/IPs by entering into obtained. Non-compliance with the consultation
an agreement with them for such development and exploitation; or requirement gives the ICCs/IPs the right to stop or
(3) it may enter into an agreement with a non-member of the suspend any project granted by any department or
ICCs/IPs, whether natural or juridical, local or foreign; or (4) it government agency.
may allow such non-member to participate in the agreement with As its subtitle suggests, this provision requires as a
the ICCs/IPs. precondition for the issuance of any concession, license
The rights granted by the IPRA to the ICCs/IPs over the or agreement over natural resources, that a certification
natural resources in their ancestral domains merely gives the be issued by the NCIP that the area subject of the
ICCs/IPs, as owners and occupants of the land on which the agreement does not lie within any ancestral domain. The
resources are found, the right to the small-scale utilization of these provision does not vest the NCIP with power over the
resources, and at the same time, a priority in their large-scale other agencies of the State as to determine whether to
development and exploitation. Section 57 does not mandate the grant or deny any concession or license or agreement. It
State to automatically give priority to the ICCs/IPs. The State merely gives the NCIP the authority to ensure that the
has several options and it is within its discretion to choose which ICCs/IPs have been informed of the agreement and that
option to pursue. Moreover, there is nothing in the law that their consent thereto has been obtained. Note that the
gives the ICCs/IPs the right to solely undertake the certification applies to agreements over natural resources
large-scale development of the natural resources within that do not necessarily lie within the ancestral domains.
For those that are found within the said domains, ILO Convention No. 169 is entitled the
Sections 7(b) and 57 of the IPRA apply. “Convention Concerning Indigenous and Tribal Peoples
V. THE IPRA IS A RECOGNITION OF OUR in Independent Countries”248 and was adopted on June
27, 1989. It is based on the Universal Declaration of
ACTIVE PARTICIPATION IN THE
Human Rights, the International Covenant on
INDIGENOUS INTERNATIONAL Economic, Social and Cultural Rights, the International
MOVEMENT. Covenant on Civil and Political Rights, and many other
The indigenous movement can be seen as the heir to a international instruments on the prevention of
history of anti-imperialism stretching back to prehistoric discrimination.249 ILO Convention No. 169 revised
times. The movement received a massive impetus during the “Convention Concerning the Protection and
the 1960’s from two sources. First, the decolonization of Integration of Indigenous and Other Tribal and Semi-
Asia and Africa brought into the limelight the possibility Tribal Populations in Independent Countries” (ILO No.
of peoples controlling their own destinies. Second, the 107) passed on June 26, 1957. Developments in
right of self-determination was enshrined in the UN international law made it appropriate to adopt new
Declaration on Human Rights.238 The rise of the civil international standards on indigenous peoples “with a
rights movement and anti-racism brought to the view to removing the assimilationist orientation of the
attention of North American Indians, Aborigines in earlier standards,” and recognizing the aspirations of
Australia, and Maori in New Zealand the possibility of these peoples to exercise control over theirown
fighting for fundamental rights and freedoms. institutions,waysof life and economic development.”250
In 1974 and 1975, international indigenous CONCLUSION
organizations were founded,239 and during the 1980’s, The struggle of the Filipinos throughout colonial history
indigenous affairs were on the international agenda. The had been plagued by ethnic and religious differences.
people of the Philippine Cordillera were the first Asians These differences were carried over and magnified by
to take part in the international indigenous movement. the Philippine government through the imposition of a
It was the Cordillera People’s Alliance that carried out national legal order that is mostly foreign in origin or
successful campaigns against the building of the Chico derivation.251 Largely unpopulist, the present legal
River Dam in 1981-82 and they have since become one system has resulted in the alienation of a large sector of
of the best-organized indigenousbodies in the world.240 society, specifically, the indigenous peoples. The
Presently, there is a growing concern for indigenous histories and cultures of the indigenes are relevant to the
rights in the international scene. This came as a result of evolution of Philippine culture and are vital to the
the increased publicity focused on the continuing understanding of contemporary problems.252 It is
disrespect for indigenous human rights and the through the IPRA that an attempt was made by our
destruction of the indigenous peoples’ environment, legislators to understand Filipino society not in terms of
together with the national governments’ inability to deal myths and biases but through common experiences in
with the situation.241Indigenous rights came as a result the course of history. The Philippines became a
of both human rights and environmental protection, and democracy a centennial ago and the decolonization
have become a partof today’spriorities for the process still continues. If the evolution of the Filipino
internationalagenda.242 people into a democratic society is to truly proceed
International institutions and bodies have realized the democratically, i.e., if the Filipinos as a whole are to
necessity of applying policies, programs and specific participate fully in the task of continuing
rules concerning IPs in some nations. The World Bank, democratization,253 it is this Court’s duty to acknowledge
for example, first adopted a policy on IPs as a result of the presence of indigenous and customary laws in the
the dismal experience of projects in Latin country and affirm their co-existence with the land laws
America.243 The World Bank now seeks to apply its in our national legal system.
current policy on IPs to some of its projects in Asia. This With the foregoing disquisitions, I vote to uphold the
policy has provided an influential model for the projects constitutionality of theIndigenous Peoples Rights Act of
of theAsianDevelopment Bank.244 1997.
The 1987 Philippine Constitution formally SEPARATE OPINION
recognizes the existence of ICCs/IPs and declares as a
State policy the promotion of their rights within the
VITUG, J.:
framework of national unity and development.245 The
IPRA amalgamates the Philippine category of ICCs with
the international category of IPs,246 and is heavily An issue of grave national interest indeed deserves a proper place
influenced by both the International Labor Organization in any forum and, when it shows itself in a given judicial
(ILO) Convention 169 and the United Nations (UN) controversy, the rules of procedure, like locus standi, the propriety
Draft Declaration on the Rights of of the specific remedy invoked, or the principle of hierarchy of courts,
IndigenousPeoples.247 that may ordinarily be raised by party-litigants, should not be so
perceived as good and inevitable justifications for advocating IPRA effectively withdraws from the public domain the so-
timidity, let alone isolationism,by theCourt. called ancestral domains covering literally millions of hectares. The
A cardinal requirement, to which I agree, is that one notion of community property would comprehend not only matters
who invokes the Court’s adjudication must have a of proprietary interest but also some forms of self governance over
personal and substantial interest in the dispute; 1 indeed, the curved-out territory. This concept is elaborated in
the developing trend would require a logical Section 7 of the law which states that the “rights of
nexus between the status asserted and the claim sought ownership and possession of ICCs/IPs to their ancestral
to be adjudicated in order to ensure that one is the domains shall be recognized and protected,” subsumed
proper and appropriate party to invoke judicial under which would encompass the right of
power.2 The rule requires a party to aptly show a ownership (paragraph a); the right to develop, control and use
personal stake in the outcome of the case or an injury to lands and natural resources, including “the right to negotiate the
himself that can be redressed by a favorable decision so terms and conditions for the exploration of natural resources in the
as to warrant his invocation of the Court’s jurisdiction areas for the purpose of ensuring ecological,
and to render legally feasible the exercise of the Court’s environmental protection and the conservation
remedial powers in his behalf. If it were otherwise, the measures, pursuant to national and customary
exercise of that power can easily become too unwieldy laws”; (par. b); the right to stay in the territories (par. c); the right
by its sheer magnitude and scope to a point that may, in to return to their abandoned lands in case of displacement (par. d);
no small measure, adversely affect its intended the right to regulate entry of migrants (par. e); the right to claim
essentiality, stability and consequentially. parts of ancestral domains previously reserved (par. g); and the right
Nevertheless, where a most compelling reason to resolve land conflicts in accordance primarily with customary law
exists, such as when the matter is of transcendental (par. h). Concurrently, Section 57 states that ICCs/IPs
importance and paramount interest to the nation,3 the shall be given “priority rights in the harvesting,
Court must take the liberal approach that recognizes the extraction, development or exploitation of any natural
legal standing of nontraditional plaintiffs, such resources within the ancestral domains.” These provisions
as citizens and taxpayers, to raise constitutional issues of IPRA, in their totality, are, in my view, beyond the context of
that affect them.4 This Court thus did so in a case5 that the fundamental law and virtually amount to an undue delegation,
involves the conservation of our forests for ecological if not an unacceptable abdication, of State authority over a
needs. Until an exact balance is struck, the Court must accept significant area of the country and its patrimony.
an eclectic notion that can free itself from the bondage of legal nicety Article XII of the 1987 Constitution expresses that
and hold trenchant technicalities subordinate towhatmaybe all “lands of the public domain, waters, minerals, coal, petroleum,
considered to be ofoverriding concern. and other mineral oils, all forces of potential energy, fisheries, forests
The petition seeks a declaration by the Court of or timber, wildlife, flora and fauna, and other natural resources are
unconstitutionally of certain provisions of Republic Act owned by the State,” and, with the exception of agricultural lands,
No. 8371, a law that obviously is yet incapable of exact “shall not be alienated.” It ordains that the “exploration,
equation in its significance to the nation and its people development, and utilization of natural resources shall be under the
now and in the generations yet to come. Republic Act full controland supervisionof the State.”8
No. 8371, otherwise also known as the Indigenous These provisions had roots in the 1935 Constitution
Peoples Rights Act of 1997 CIPRA”), enacted into law which, along with some other specific mandates in the
in 1997 and made effective on 22 November 1997, is 1935 Constitution, forming Article XII under the title
apparently intended to be a legislative response to the “Conservation and Utilization of Natural Resources,”
1987 Constitution which recognizes the rights of were derived largely from the report of the Committee
indigenous cultural communities “within the framework on Nationalization and Preservation of Lands and other
of national unity and development”6 and commands the Natural Resources.9 According to the Committee report,
State, “subject to the provisions of this Constitution and national among the principles upon which these provisions were
development policies and programs,” to protect the rights of based, was “that the land, minerals, forests and other
indigenous cultural communities to their ancestral lands natural resources constitute the exclusive heritage of the
in order to ensure their economic, social, and cultural Filipino Nation,” and should thereby “be preserved for
well-being.7 those under the sovereign authority of the Nation and
Among the assailed provisions in IPRA is its Section for their posterity.”10 The delegates to the 1934
3(a) which defines “ancestral domains” to embrace “all Constitutional Convention were of the unanimous view
areas generally belonging to ICCs/IPs comprising lands, inland that the “policy on natural resources, being fundamental
waters, coastal areas, and natural resources” including “ancestral to the nation’s survival should not be left to the changing
lands, forests, pasture, residential, agricultural, and other lands mood of the lawmakingbody.”11
individually owned whether alienable and disposable or otherwise,” The 1987 Constitution, like the precursor provisions
over which indigenous cultural communities/indigenous peoples in the 1935 and 1973 Constitutions, thus expresses
(“ICCs/IPs”) could exercise virtual ownership and control. this regalian doctrine of the old, and the domainial doctrine of
the new, that all lands and natural resources belong to
the state other than those which it recognizes to be of publication to render them correspondingly binding and
private ownership. Except for agricultural lands of the public effective as such.
domain which alone may be alienated, forest or timber, and mineral Undoubtedly, IPRA has several good points, and I would
lands, as well as all other natural resources, of the country must respectfully urge Congress to re-examine the law. Indeed, the State
remain with the state, the exploration, development and utilization is exhorted to protect the rights of indigenous cultural communities
of which shall be subject to its full control and supervision to their ancestral lands, a task that would entail a balancing of
albeitallowing it to enter into coproduction, joint venture interest between their specific needs and the imperatives of national
or production-sharing agreements, or into agreements interest.
with foreign-owned corporations involving technical or WHEREFORE, I vote to grant thepetition.
financial assistance for large-scale SEPARATE OPINION
exploration,development andutilization.12
The decision of the United States Supreme Court KAPUNAN, J.:
in Cariño vs. Insular Government,13 holding that a parcel of
land held since time immemorial by individuals under a You ask if we own the land . .. How can you own that
claim of private ownership is presumed never to have which will outlive you? Only the race own the land
been public land and cited to downgrade the application because only the race lives forever. To claim a piece of
of the regalian doctrine, cannot override the collective will of land is a birthright of every man. The lowly animals claim
the people expressed in the Constitution. It is in them that their place; how much more man? Man is born to live.
sovereignty resides and from them that all government Apu Kabunian, lord of us all, gave us life and placed us
authority emanates.14 It is not then for a court ruling or in the world to live human lives. And where shall we
any piece of legislation to be conformed to by the obtain life? From the land. To work (the land) is an
fundamental law, but it is for the former to adapt to the obligation, not merely a right. In tilling the land, you
latter, and it is the sovereign act that must, between them, stand possess it. And so land is a grace that must be nurtured.
inviolate. To enrich it and make it fructify is the eternal
The second paragraph of Section 5 of Article XII of exhortation of Apu Kabunian to all his children. Land is
the Constitution allows Congress to provide "for the sacred. Land is beloved.From its womb springs . .. life.
applicability of customary laws governing property rights —Macli-ing Dulag, Chieftain of the Kalinga
or relations in determining the ownership and extent of Tribe (quoted in Ponciano L. Bennagen,
ancestral domains.” I do not see this statement as saying “Tribal Filipinos” in Indigenous View of
that Congress may enact a law that would simply express Land and the Environment, ed. Shelton H.
that “customary laws shall govern” and end it there. Had Davis, the World Bank Discussion Papers,
it been so, the Constitution could have itself easily No. 188, pp. 71-72.)
provided it without having to still commission Congress It is established doctrine that a statute should be
to do it. Mr. Chief Justice Davide has explained this construed whenever possible in harmony with, rather
authority of Congress, during the deliberations of the than in violation of, the Constitution.1 The presumption
1986 Constitutional Convention, thus: is that the legislature intended to enact a valid, sensible
“Mr. Davide. xxx Insofar as the application of the and just law and one which operates no further than may
customary laws governing property rights or relations in be necessary to effectuate the specific purpose of the
determining the ownership and extent of the ancestral law.2
domain is concerned, it is respectfully submitted that the
particular matter must be submitted to Congress. I The challenged provisions of the Indigenous Peoples
understand that the idea of Comm. Bennagen is for the Rights Act (IPRA) must be construed in view of such
possibility of the codification of these customary laws. presumption of constitutionality. Further, the
So before these are codified, we cannot now mandate interpretation of these provisions should take into
that the same must immediately be applicable. We leave account the purpose of the law, which is to give life to
it to Congress to determine the extent of the ancestral the constitutional mandate that the rights of the
domain and the ownership thereof in relation to indigenous peoples be recognized and protected.
whatever may have been codified earlier. So, in short, let The struggle of our indigenous peoples to reclaim
us not put thecart ahead of the horse.”15 their ancestral lands and domains and therefore, their
The constitutional aim, it seems to me, is to get Congress to look heritage, is not unique. It is one that they share with the
closely into the customary laws and, with specificity and by proper red-skinned “Indians” of the United States, with the
recitals, to hew them to, and make them part of, the stream of laws. aborigines of Australia, the Maori of New Zealand and
The “due process clause,” as I so understand it in Tañada vs. the Sazmi of Sweden, to name a few. Happily, the
Tuvera16 would require an apt publication of a legislative nations in which these indigenous peoples live all have
enactment before it is permitted to take force and effect. enacted measures in an attempt to heal an oppressive
So, also, customary laws, when specifically enacted to past by the promise of a progressive future. Thus has the
become part of statutory law, must first undergo that international community realized the injustices that have
been perpetrated upon the indigenous peoples. This means of communication at home or in the
sentiment among the family of nations is expressed in a family, or as the main, preferred, habitual,
number of documents, the most recent and most general or normal language);
comprehensive of which is the Draft United Nations 2. (e)Residence in certain parts of the country; or
Declaration on the Rights of Indigenous Peoples which in certain regions of the world;
was adopted by the UN Sub-Commission on Prevention 3. (f)Other relevant facts.6
of Discrimination and Protection of Minorities by its
resolution on August 26, 1994. Among the rights In Philippine constitutional law, the term “indigenous
recognized by the UN Draft is the restitution of lands, peoples” pertains to those groups of Filipinos who have
territories and even the resources which the indigenous retained a high degree of continuity from pre-Conquest
peoples have traditionally owned or otherwise occupied culture.7 Philippine legal history, however, has not been
or used, and which have been confiscated, occupied, kind to the indigenous peoples, characterized them as
used or damaged without the free and informed consent “uncivilized,”8 “backward people,”9 with “barbarous
of the indigenouspeoples. practices”10 and “a low orderofintelligence.”11
A Historical Backdrop on the Indigenous Peoples Drawing inspiration from both our fundamental law
The term “indigenous” traces its origin to the Old Latin and international law, IPRA now employs the politically-
word indu,meaning “within.” In the sense the term has correct conjunctive term “indigenous
come to be used, it is nearer in meaning to the Latin peoples/indigenous cultural communities” as follows:
word indigenus, which means “native.”3 “Indigenous” Sec. 3. Definition of Terms.—For purposes of this Act, the
refers to that which originated or has been produced following terms shall mean:
naturally in a particular land, and has not been xxx
introduced from the outside.4 In international law, the
definition of what constitutes “indigenous peoples” 1. (h)Indigenous peoples/Indigenous cultural
attains some degree of controversy. No definition of the communities.—refer to a group of people or
term “indigenous peoples” has been adopted by the homogenous societies identified by self-
United Nations (UN), although UN practice has been ascription and ascription by others, who have
guided by a working definition in the 1986 Report of UN continuously lived as organized community
Special Rapporteur Martinez Cobo:5 on communally bounded and defined
Indigenous communities, peoples and nations are those territory,
which, having a historical continuity with pre-invasion
and pre-colonial societies that developed on their
and who have, under claims of ownership since time
territories, consider themselves distinct from other
immemorial, occupied, possessed and utilized such
sections of the societies now prevailing in those
territories, sharing common bonds of language, customs,
territories, or parts of them. They form at present non-
traditions, and other distinctive cultural traits, or who
dominant sections of society and are determined to
have, through resistance to political, social and cultural
preserve, develop and transmit to future generations
inroads of colonization, non-indigenous religions and
their ancestral territories, and their ethnic identity, as the
cultures, became historically differentiated from the
basis of their continued existence as peoples, in
majority of Filipinos. Indigenous peoples shall likewise
accordance with their own cultural patterns, social
include peoples who are regarded as indigenous on
institutionsand legal systems.
account of their descent from the populations which
This historical continuity may consist of the
inhabited the country at the time of conquest or
continuation, for an extended period reaching into the
colonization, or at the time of inroads of non-indigenous
present, of one or more of the following factors:
religions and cultures, or the establishment of present
State boundaries, who retain some or all of their own
1. (a)Occupation of ancestral lands, or atleast social, economic, cultural and political institutions, but
ofpart of them; who may have been displaced from their traditional
2. (b)Common ancestry with the original domains or who may have resettled outside
occupants of these lands; theirancestral domains x x x.
3. (c)Culture in general, or in specific Long before the Spaniards set foot in these islands, the
manifestations (such as religion, living under indigenous peoples were already plowing our soil and
a tribal system, membership of an indigenous hunting in our forests. The Filipinos of Aeta and Malay
community, dress, means of livelihood, life- stock, who were the original inhabitants of our
style,etc.); archipelago, were, at that time, practicing a native
culture. From the time the Spaniards arrived up to the
1. (d)Language (whether used as the only early part of the American regime,12 these native
language, as mother-tongue, as the habitual inhabitants resisted foreign invasion, relentlessly fighting
for their lands. Today, from the remote uplands of social, economic and political inequalities, and remove
Northern Luzon, to Palawan, Mindoro and Mindanao, cultural inequities by equitably diffusing wealth and
the indigenous peoples continue to live on and cultivate political power for the common good.
their ancestrallands, the lands of their forefathers. To this end, the State shall regulate the acquisition,
Though Filipinos today are essentially of the same ownership, use and disposition of propertyand its
stock as the indigenous peoples, our national culture increments.19 Sec. 6. The State shall apply the principles
exhibits only the last vestiges of this native culture. of agrarian reform or stewardship, whenever applicable
Centuries of colonial rule and neocolonial domination in accordance with law, in the disposition and utilization
have created a discernible distinction between the of other natural resources, including lands of the public
cultural majority and the group of cultural domain under lease or concession, subject to prior
minorities.13The extant Philippine national culture is the rights, homestead rights of small settlers, and the rights
culture of the majority; its indigenous roots were of indigenous communities to their ancestral lands.20
replaced by foreign cultural elements that are decidedly Sec. 17. The State shall recognize, respect, and
pronounced, if not dominant.14 While the culture of the protect the rights of indigenous cultural communities to
majority reoriented itself to Western influence, the preserve and develop their cultures, traditions, and
culture of the minorities hasretained its essentially institutions. It shall consider these rights in the
nativecharacter. One of every six Filipinos is a member formulation of national plans and policies.21
of an indigenous cultural community. Around twelve
million Filipinos are members of the one hundred and Sec. 12. The Congress may create a consultative body to
ten or so indigenous cultural communities,15 accounting advise the President on policies affecting indigenous
for more than seventeen per centum of the estimated cultural communities, the ma-jorityof the members of
seventy million Filipinos16 in our country. Sadly, the which shallcome fromsuch communities.22
indigenous peoples are one of the poorest sectors of IPRA was enacted precisely to implement the foregoing
Philippine society. The incidence of poverty and constitutional provisions. It provides, among others,
malnutrition among themes significantly higher than the that the State shall recognize and promote the rights of
national average. The indigenous peoples are also among indigenous peoples within the framework of national
the most powerless. Perhaps because of their inability to unity and development, protect their rights over the
speak the language of law and power, they have been ancestral lands and ancestral domains and recognize the
relegated to the fringes of society. They have little, if any, applicability of customary laws governing property rights
voice in national politics and enjoy the least protection or relations in determining the ownership and extent of
from economic exploitation. the ancestral domains.23 Moreover, IPRA enumerates
The Constitutional Policies on Indigenous Peoples the civil and political rights of the indigenous
The framers of the 1987 Constitution, looking back to peoples;24 spells out their social and cultural
the long destitution of our less fortunate brothers, rights;25 acknowledges a general concept of indigenous
fittingly saw the historic opportunity to actualize the property right and recognizes title thereto;26 and creates
ideals of people empowerment and social justice, and to the NCIP as an independent agency under theOffice of
reach out particularly to the marginalized sectors of the President.27
society, including the indigenous peoples. They Preliminary Issues
incorporated in the fundamental law several provisions A.The petition presentsan actual controversy.
recognizing and protecting the rights and interests of the The time-tested standards for the exercise of judicial
indigenous peoples, to wit: review are: (1) the existence of an appropriate case; (2)
an interest personal and substantial by the party raising
Sec. 22. The State recognizes and promotes the rights of the constitutional question; (3) the plea that the function
indigenous peoples within the frameworkof national be exercised at the earliest opportunity; and (4) the
unityand development.17 necessity that the constitutional question be passed upon
Sec. 5. The State, subject to the provisions of this in order todecide the case.28
Constitution and national development policies and Courts can only decide actual controversies, not
programs, shall protect the rights of indigenous cultural hypothetical questions or cases.29 The threshold issue,
communities to their ancestral lands to ensure their therefore, is whether an “appropriate case” exists for the
economic, social, andcultural well-being. exercise of judicial review in the present case.
The Congress may provide for the applicability of An “actual case or controversy” means an existing
customary laws governing property rights and relations case or controversy which is both ripe for resolution and
in determining the ownership and extent of ancestral susceptible of judicial determination, and that which is
domains.18 not conjectural or anticipatory,30 maximum ICC/IP
Sec. 1. The Congress shall give the highest priority participation in the direction of education, health, as well
to the enactment of measures that protect and enhance as other services of ICCs/Ips, in order to render such
the right of all the people to human dignity, reduce services more responsive to the needs and desires of
thesecommunities. Towards these ends, the State shall early as 1910, the Court in the case of Severino vs.
institute and establish the necessary mechanisms to GovernorGeneral41held:
enforce and guarantee the realization of these rights, xxx [W]hen the relief is sought merely for the protection
taking into consideration their customs, traditions, of private rights, the relator must show some personal
values, beliefs, interests and institutions, and to adopt or special interest in the subject matter, since he is
and implement measures to protect their rights to their regarded as the real party in interest and his right must
ancestral domains or that which seeks to resolve clearly appear. Upon the other hand, when the question is
hypothetical or feigned constitutional problems.31 A one of public right and the object of the mandamus is to
petition raising a constitutional question does not procure the enforcement of a public duty, the people are
present an “actual controversy,” unless it alleges a legal regarded as the real party in interest, and the relator at whose
right or power. Moreover, it must show that a conflict of instigation the proceedings are instituted need not show that he has
rights exists, for inherent in the term “controversy” is any legal or special interest in the result, it being sufficient to show
the presence of opposing views or that he is a citizen and as such interested in the execution of the
contentions.32 Otherwise, the Court will be forced to laws.42
resolve issues which remain unfocused because they lack This Court has recognized that a “public right,” or that
such concreteness provided when a question emerges which belongs to the people at large, may also be the
precisely framed from a clash of adversary arguments subject of an actual case or controversy. In Severino, we
exploring every aspect of a multifaceted situation ruled that a private citizen may enforce a “public right”
embracing conflicting and demanding interests.33 The in behalf of other citizens. We opined therein that:
controversy must also be justiciable; that is, it must be ... [T]he right which [petitioner] seeks to enforce is not
susceptible of judicial determination.34 greater or different from that of any other qualified
In the case at bar, there exists a live controversy elector in the municipality of Silay. It is also true that the
involving a clash of legal rights. A law has been enacted, injury which he would suffer in case he fails to obtain
and the Implementing Rules and Regulations approved. the relief sought would not be greater or different from
Money has been appropriated and the government that of the other electors; but he is seeking to enforce a public
agencies concerned have been directed to implement the right as distinguished from a private right. The real party in
statute. It cannot be successfully maintained that we interest is the public, or the qualified electors of the town of
should await the adverse consequences of the law in Silay. Each elector has the same right and would suffer the same
order to consider the controversy actual and ripe for injury. Each elector stands on the same basis with reference to
judicial resolution. It is precisely the contention of the maintaining a petition whether or not the relief sought by
petitioners that the law, on its face, constitutes an the relator should be granted.43
unconstitutional abdication of State ownership over In Tañada v. Tuvera,44 the Court enforced the “public
lands of the public domain and other natural resources. right” to due process and to be informedof matters
Moreover, when the State machinery is set into motion ofpublic concern.
to implement an alleged unconstitutional statute, this In Garcia vs. Board of Investments,45 the Court upheld
Court possesses sufficient authority to resolve and the “public right” to be heard or consulted on matters of
prevent imminent injury and violation of the national concern.
constitutional process. In Oposa v. Factoran,46 the Court recognized the
B. Petitioners, as citizensand taxpayers, have the “public right” of citizens to “a balanced and healthful
ecology which, for the first time in our nation’s
requisite standing to raise the constitutional constitutional history, is solemnly incorporated in the
questions herein. fundamental law.”47 Mr. Justice (now Chief Justice)
In addition to the existence of an actual case or Hilario G. Davide, Jr., delivering the opinion ofthe
controversy, a person who assails the validity of a statute Court, stated that:
must have a personal and substantial interest in the case, Such a right belongs to a different category of rights
such that, he has sustained, or will sustain, a direct injury altogether for it concerns nothing less than self-
as a result of its enforcement.35 Evidently, the rights preservation and self-perpetuation—aptly and fittingly
asserted by petitioners as citizens and taxpayers are held stressed by petitioners—the advancement of which may
in common by all the citizens, the violation of which may even be said to predate all governments and
result only in a “generalized grievance.”36 Yet, in a sense, constitutions. As a matter of fact, these basic rights need not
all citizen’s and taxpayer’s suits are efforts to air even be written in the Constitution for they are assumed to
generalized grievances about the conduct of government existfrom theinception of humankind.48
and the allocation of power.37 Petitioners, as citizens, possess the “public right” to
In several cases, the Court has adopted a liberal ensure that the national patrimony is not alienated and
attitude with regard to standing.38 The proper party diminished in violation of the Constitution. Since the
requirement is considered as merely procedural,39 and government, as the guardian of the national patrimony,
the Court has ample discretion with regard thereto.40 As holds it for the benefit of all Filipinos without distinction
as to ethnicity, it follows that a citizen has sufficient enjoyment of a right or office to which such other is
interest to maintain a suit to ensure that any grant of entitled, and there is no other plain, speedy and adequate
concessions covering the national economy and remedy in the ordinary course oflaw. 55
patrimony strictly complies with constitutional In this case, the petitioners pray that respondents be
requirements. Thus, the preservation of the integrity and restrained from implementing the challenged provisions
inviolability of the national patrimony is a proper of the IPRA and its Implementing Rules and the assailed
subjectof a citizen’s suit. DENR Circular No. 2, series of 1998, and that the same
In addition, petitioners, as taxpayers, possess the right officials be enjoined from disbursing public funds for
to restrain officials from wasting public funds through the implementation of the said law and rules. They
the enforcement of an unconstitutional statute. It is well- further ask that the Secretary of the DENR be
settled that a taxpayer has the right to enjoin public compelled to perform his duty to control and supervise
officials from wasting public funds through the the activities pertaining to natural resources.
implementation of an unconstitutional statute,49 and by Prohibition will lie to restrain the public officials
necessity, he may assail the validity of a statute concerned from implementing the questioned
appropriating public funds.50 The taxpayer has paid his provisions of the IPRA and from disbursing funds in
taxes and contributed to the public coffers and, thus, connection therewith if the law is found to be
may inquire into the manner by which the proceeds of unconstitutional. Likewise, mandamus will lie to compel
his taxes are spent. The expenditure by an official of the the Secretary of the DENR to perform his duty to
State for the purpose of administering an invalid law control and supervise the exploration, development,
constitutes a misapplication of suchfunds.51 utilization and conservation of the country’s natural
The IPRA appropriates funds as indicated in its title: resources. Consequently, the petition for prohibition
“An Act to Recognize, Protect and Promote the Rights and mandamusis not an improperremedy for the relief
of Indigenous Cultural Communities/Indigenous sought.
Peoples, Creating the National Commission on D. Notwithstanding the failure of petitioners to
Indigenous Peoples, Establishing Implementing
Mechanisms, Appropriating Funds Therefor, and for Other
observe the hierarchy of courts, the Court assumes
Purposes.” In the same manner, Section 79 authorizes jurisdiction over the petition in view of the
for the expenditure of public funds by providing that importanceof the issues raised therein.
“the amount necessary to finance [its] initial Between two courts of concurrent original jurisdiction,
implementation shall be charged against the current it is the lower court that should initially pass upon the
year’s appropriation for the Office for Northern Cultural issues of a case. That way, as a particular case goes
Communities (the “ONCC”) and the Office for through the hierarchy of courts, it is shorn of all but the
Southern Cultural Communities (the important legal issues or those of first impression, which
“OSCC”),”52 which were merged as organic offices of are the proper subject of attention of the appellate court.
the NCIP.53 Thus,the IPRA is a valid subject of a This is a procedural rule borne of experience and
taxpayer’s suit. adopted to improve the administration of justice.
C. The petition for prohibition and mandamusis not This Court has consistently enjoined litigants to
an improper remedy. respect the hierarchy of courts. Although this Court has
Prohibition is an extraordinary writ directed against any concurrent jurisdiction with the Regional Trial Courts
and the Court of Appeals to issue writs
tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, of certiorari, prohibition, mandamus, quo warranto, habeas
ordering said entity or person to desist from further corpus and injunction,56 such concurrence does not give a
proceedings when said proceedings are without or in party unrestricted freedom of choice of court forum.
The resort to this Court’s primary jurisdiction to issue
excess of said entity’s or person’s jurisdiction, or are
accompanied with grave abuse of discretion, and there is said writs shall be allowed only where the redress desired
no appeal or any other plain, speedy and adequate cannot be obtained in the appropriate courts or where
remedy in the ordinary course of law.54 Mandamus, on the exceptional and compelling circumstances justify such
invocation.57 We held in People v. Cuaresma 58 that:
other hand, is an extraordinary writ commanding a
tribunal, corporation, board, officer or person, A becoming regard for judicial hierarchy most certainly
immediately or at some other specified time, to do the indicates that petitions for the issuance of extraordinary
act required to be done, when said entity or person writs against first level (“inferior”) courts should be filed
with the Regional Trial Court, and those against the
unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, latter, with the Court of Appeals. A direct invocation of the
trust or station, or when said entity or person unlawfully Supreme Court’s original jurisdiction to issue these writs should be
excludes another from the use and allowed only where there are special and important reasons therefor,
clearly and specifically set out in the petition. This is established
policy. It is a policy necessary to prevent inordinate
demands upon the Court’s time and attention which are country. In such agreements, the State shall promote the
better devoted to those matters within its exclusive juris- development and use of local scientific and
diction, and to prevent further over-crowding of the technicalresources.
Court’s docket x xx.59(Emphasis supplied.) The President shall notify the Congress of every
IPRA aims to rectify the historical injustice inflicted contract entered into in accordance with this provision,
upon indigenous peoples. Its impact upon the lives not within thirty days from its execution.
only of the indigenous peoples but also upon the lives of Under IPRA, indigenous peoples may obtain the
all Filipinos cannot be denied. The resolution of this case recognition of their right of ownership60 over ancestral
by the Court at the earliest opportunity is necessary if the lands and ancestral domains by virtue of native
aims of the law are to be achieved. This reason is title.61 The term “ancestral lands” under the statute refers
compelling enough to allow petitioners’ invocation of to lands occupied by individuals, families and clans who
this Court’sjurisdiction in the first instance. are members of indigenous cultural communities, in-
Substantive Issues eluding residential lots, rice terraces or paddies, private
forests, swidden farms and tree lots. These lands are
Primary Issue
required to have been “occupied, possessed and utilized”
The issue of prime concern raised by petitioners and the by them or through their ancestors “since time
Solicitor General revolves around the constitutionality immemorial, continuously to the present.” 62On the
of certain provisions of IPRA, specifically Sections 3(a),
other hand, “ancestral domains” is defined as areasgenerally
3(b), 5, 6, 7, 8, 57, 58 and 59. These provisions allegedly
belonging to indigenous cultural communities, including
violate Section 2, Article XII of the Constitution, which ancestral lands, forests, pasture, residential and
states: agricultural lands, hunting grounds, worship areas, and
Sec. 2. All lands of the public domain, waters, minerals,
lands no longer occupied exclusively by indigenous
coal, petroleum, and other mineral oils, all forces of
cultural communities but to which they had traditional
potential energy, fisheries, forests or timber, wildlife, access, particularly the home ranges of indigenous
flora and fauna, and other natural resources are owned cultural communities who are still nomadic or shifting
by the State. With the exception of agricultural lands, all
cultivators. Ancestral domains also include inland
other natural resources shall not be alienated. The
waters, coastal areas and natural resources
exploration, development, and utilization of natural therein.63 Again, the same are required to have been
resources shall be under the full control and supervision “held under a claim of ownership, occupied or
of the State. The State may directly undertake such
possessed by ICCs/IPs, by themselves or through their
activities, or it may enter into co-production, joint
ancestors, communally or individually since time
venture, or production-sharing agreements with Filipino immemorial, continuously to the present.”64Under
citizens, or corporations or associations at least sixty per Section 56, property rights within the ancestral domains
centum of whose capital is owned by such citizens. Such
already existing and/or vested upon effectivity of said
agreements may be for a period not exceeding twenty-
law “shall be recognized and respected.”
five years, renewable for not more than twenty-five Ownership is the crux of the issue of whether the
years, and under such terms and conditions as may be provisions of IPRA pertaining to ancestral lands,
provided by law. In cases of water rights for irrigation,
ancestral domains, and natural resources are
water supply, fisheries, or industrial uses other than the
unconstitutional. The fundamental question is, who,
development of water power, beneficial use maybe between the State and the indigenous peoples, are the
themeasure and limit of the grant. rightful ownersof these properties?
The State shall protect the nation’s marine wealth in
It bears stressing that a statute should be construed
its archipelagic waters, territorial sea, and exclusive
in harmony with, and not in violation, of the
economic zone, and reserve its use and fundamental law.65 The reason is that the legislature, in
enjoymentexclusivelyto Filipino citizens. enacting a statute, is assumed to have acted within its
authority and adhered to the constitutional limitations.
The Congress, may, by law, allow small-scale utilization
Accordingly, courts should presume that it was the
of natural resources by Filipino citizens, as well as intention of the legislature to enact a valid, sensible, and
cooperative fish farming, with priority to subsistence just law and one which operates no further than may be
fishermen and fishworkers in rivers, lakes, bays and
necessary to effectuate the specific purpose of thelaw. 66
lagoons.
The President may enter into agreements with A. The provisions of IPRA recognizing the
foreign-owned corporations involving either technical or ownership of indigenous peoples over the ancestral
financial assistance for large-scale exploration, lands and ancestral domains are not
development and utilization of minerals, petroleum, and
other mineral oils according to the general terms and
unconstitutional.
In support of their theory that ancestral lands and
conditions provided by law, based on real contributions
to the economic growth and general welfare of the ancestral domains are part of the public domain and,
thus, owned by the State, pursuant to Section 2, Article been incorporated into our fundamental law and has
XII of the Constitution, petitioners and been recognized by the Court.67
theSolicitorGeneral advance thefollowing arguments:
First, according to petitioners, the King of Spain under Generally, under the concept of jura regalia, private title
international law acquired exclusive dominion over the to land must be traced to some grant, express or implied,
Philippines by virtue of discovery and conquest. They from the Spanish Crown or its successors, the American
contend that the Spanish King under the theory of jura Colonial government, and thereafter, the Philippine
regalia, which was introduced into Philippine law upon Republic. The belief that the Spanish Crown is the origin
Spanish conquestin 1521, acquired title toall thelandsin of all land titles in the Philippines has persisted because
the archipelago. title to land must emanate from some source for it
cannot issue forth fromnowhere.68
Second, petitioners and the Solicitor General submit that In its broad sense, the term “jura regalia” refers to
ancestral lands and ancestral domains are owned by the royal rights,69or those rights which the King has by virtue
State. They invoke the theory of jura regalia which of his prerogatives.70 In Spanish law, it refers to a right
imputes to the State the ownership of all lands and which the sovereign has over anything in which a subject
makes the State the original source of all private titles. has a right of property or propriedad.71These were rights
They argue that the Philippine State, as successor to enjoyed during feudal times by the king as the sovereign.
Spain and the United States, is the source of anyasserted The theory of the feudal system was that title to all
right of ownership in land. lands was originally held by the King, and while the use
Third, petitioners and the Solicitor General concede of lands was granted out to others who were permitted
that the Cariñodoctrine exists. However, petitioners to hold them under certain conditions, the King
maintain that the doctrine merely states that title to lands theoretically retained the title.72 By fiction of law, the
of the public domain may be acquired by prescription. King was regarded as the original proprietor of all lands,
The Solicitor General, for his part, argues that the and the true and only source of title, and from him all
doctrine applies only to alienable lands of the public lands were held.73
domain and, thus, cannot be extended to other lands of The theory of jura regalia was therefore nothing more
the public domain such as forest or timber, mineral than a natural fruitof conquest.74
lands,and national parks. The Regalian theory, however, does not negate
Fourth, the Solicitor General asserts that even native title to lands held in private ownership since time
assuming that native title over ancestral lands and immemorial. In the landmark case of Cariño vs. Insular
ancestral domains existed by virtue of Government75 the United States Supreme Court, reversing
the Cariñodoctrine, such native title was extinguished the decision76 of the pre-war Philippine Supreme Court,
upon the ratification of the 1935 Constitution. made the following pronouncement:
Fifth, petitioners admit that Congress is mandated xxx Every presumption is and ought to be taken against
under Section 5, Article XII of the Constitution to the Government in a case like the present. It might,
protect that rights of indigenous peoples to their perhaps, be proper and sufficient to say that when, as far
ancestral lands and ancestral domains. However, they back as testimony or memory goes, the land has been held by
contend that the mandate is subject to Section 2, Article individuals under a claim of private ownership, it will be presumed
XII and the theory of jura regaliaembodied therein. to have been held in the same way from before the Spanish conquest,
According to petitioners, the recognition and protection and never to have been public land, x x x77 (Emphasis
under R.A. 8371 of the right of ownership over ancestral supplied.)
lands and ancestral domains is far in excess of the The above ruling institutionalized the recognition of the
legislative power and constitutional mandate of existence of native title to land, or ownership of land by
Congress. Filipinos by virtue of possession under a claim of
Finally, on the premise that ancestral lands and ownership since time immemorial and independent of
ancestral domains are owned by the State, petitioners any grant from the Spanish Crown, as an exception to
posit that R.A. 8371 violates Section 2, Article XII of the the theory of jura regalia.
Constitution which prohibits the alienation of non- In Cariño, an Igorot by the name of Mateo Cariño
agricultural lands of the public domain and othernatural applied for registration in his name of an ancestral land
resources. located in Benguet. The applicant established that he and
I am notpersuaded by these contentions. his ancestors had lived on the land, had cultivated it, and
Undue reliance by petitioners and the Solicitor had used it as far they could remember. He also proved
General on the theory of jura regalia is understandable. that they had all been recognized as owners, the land
Not only is the theory well recognized in our legal having been passed on by inheritance according to native
system; it has been regarded, almost with reverence, as custom. However, neither he nor his ancestors had any
the immutable postulate of Philippine land law. It has document of title from the Spanish Crown. The
government opposed the application for registration,
invoking the theory of jura regalia. On appeal, the United property covered by it is private land and is deemed
States Supreme Court held that the applicant was never to have been part of the public domain, the
entitled to the registration of his native title to their Solicitor General’s thesis that native title
ancestral land. under Cariño applies only to lands of the public domain
Cariño was decided by the U.S. Supreme Court in is erroneous. Consequently, the classification of lands of
1909, at a time when decisions of the U.S. Court were the public domain into agricultural, forest or timber,
binding as precedent in our jurisdiction. 78 We applied mineral lands, and national parks under the
the Cariño doctrine in the 1946 case of Oh Cho vs. Director Constitution82is irrelevant to the application of
of Lands,79 where we stated that “[a]ll lands the Cariño doctrine because the Regalian doctrine which
that were not acquired from the Government either by vests in the State ownership of lands of the public
purchase or by grant, belong to the public domain, but domain does not cover ancestral lands and ancestral
[a]n exception to the rule would be any land that should domains.
have been in the possession of an occupant and of his Legal history supports the Cariño doctrine.
predecessors in interest since time immemorial, for such When Spain acquired sovereignty over the
possession would justify the presumption that the land Philippines by virtue of its discovery and occupation
had never been part of the public domain or that it had thereof in the 16th century and the Treaty of Tordesillas
been private property even before the Spanish of 1494 which it entered into with Portugal,83the
conquest.”80 continents of Asia, the Americas and Africa were
Petitioners however aver that the U.S. Supreme considered as terra nullius although already populated by
Court’s ruling in Cariño was premised on the fact that the other peoples.84 The discovery and occupation by the
applicant had complied with the requisites of acquisitive European States, who were then considered as the only
prescription, having established that he and his members of the international community of civilized
predecessors-in-interest had been in possession of the nations, of lands in the said continents were deemed
property since time immemorial. In effect, petitioners sufficient to create title under international law.85
suggest that title to the ancestral land applied for by Although Spain was deemed to have acquired
Cariño was transferred from the State, as original owner, sovereignty over the Philippines, this did not mean that
to Cariño by virtue of prescription. They conclude that it acquired title to all lands in the archipelago. By virtue
the doctrine cannot be the basis for decreeing “by mere of the colonial laws of Spain, the Spanish Crown was
legislative fiat . .. that ownership of vast tracts of land considered to have acquired dominion only over
belongs to [indigenous peoples] without judicial theunoccupied and unclaimed portions ofour islands. 86
confirmation.”81 In sending the first expedition to the Philippines,
The Solicitor General, for his part, claims that Spain did not intend to deprive the natives of their
the Cariñodoctrine applies only to alienable lands of the property. Miguel Lopez de Legazpi was under
public domain and, as such, cannot be extended to other instruction of the Spanish King to do no harm to the
lands of the public domain such as forestor timber, natives and to their property. In this regard, an authority
mineral lands, andnational parks. on the early Spanish colonial period in the
There is no merit in these contentions. Philippineswrote:
A proper reading of Cariño would show that the The government of [the King of Spain] Philip II
doctrine enunciated therein applies only to lands which regarded the Philippines as a challenging opportunity to
have always been considered as private, and not to lands of the avoid a repetition of the sanguinary conquests of Mexico
public domain, whether alienable or otherwise. A and Peru. In his written instructions for
distinction must be made between ownership of land the Adelantado Legazpi, who commanded the expedition,
under native title and ownership by acquisitive Philip II envisaged a bloodless pacification of the
prescription against the State. Ownership by virtue of archipelago. This extraordinary document could have
native title presupposes that the land has been held by been lifted almost verbatim from the lectures of the
its possessor and his predecessors-in-interest in the Dominican theologian, Francisco de Vitoria, delivered in
concept of an owner since time immemorial. The land is the University of Salamanca. The King instructed
not acquired from the State, that is, Spain or its Legazpi to inform the natives that the Spaniards had
successors-in-interest, the United States and the come to do no harm to their persons or to their property.
Philippine Government. There has been no transfer of The Spaniards intended to live among them in peace and
title from the State as the land has been regarded as in friendship and ‘‘to explain to them the law of Jesus
private in character as far back as memory goes. In Christ by which they will be saved.” Although the
contrast, ownership of land by acquisitive prescription Spanish expedition could defend themselves if attacked,
against the State involves a conversion of the character the royal instruc-
of the property from alienable public land to private tions admonished the commander to commit no
land, which presupposes a transfer of title from the State aggressive act which might arouse native hostility. 87
to a private person. Since native title assumes that the
Spanish colonial laws recognized and respected Filipino has been held that the State may impair vested rights
landholdings including native land occupancy.88 Thus, through a legitimate exercise of police power.
the Recopilación de Leyes de las Indias expressly conferred Vested rights do not prohibit the Sovereign from
ownership of lands already held by the natives.89 The performing acts not only essential to but determinative
royal decrees of 1880 and 1894 did not extinguish native of social welfare and existence. To allow otherwiseis to
title to land in the Philippines. The earlier royal decree, invite havoc in the established social system, x x x
dated June 25, 1880, provided that all those in Time-immemorial possession does not create
“unlawful possession of royal lands” must legalize their private ownership in cases of natural resources that have
possession by means of adjustment proceedings,90 and been found from generation to generation to be critical
within the period specified. The later royal decree, dated to the survival of the Sovereign and its agent, the State.98
February 13, 1894, otherwise known as the Maura Law, Stated simply, the Solicitor General’s argument is that
declared that titles that were capable of adjustment under the State, as the source of all titles to land, had the power
the royal decree of 1880, but for which adjustment was to re-vest in itself, through the 1935 Constitution, title to
not sought, were forfeited. Despite the harsh wording of all lands, including ancestral lands and ancestral
the Maura Law, it was held in the case of Cariño that the domains. While the Solicitor General admits that such a
royal decree of 1894 should not be construed as theory would necessarily impair vested rights, he reasons
confiscation of title, but merely as thewithdrawal of out that even vested rights of ownership over ancestral
theprivilege of registering such title.91 lands and ancestral domains are not absolute and may be
Neither was native title disturbed by the Spanish impaired by the legitimate exercise of police power.
cession of the Philippines to the United States, contrary I cannot agree. The text of the provision of the 1935
to petitioners’ assertion that the US merely succeeded to Constitution invoked by the Solicitor General, while
the rights of Spain, including the latter’s rights over lands embodying the theory of jura regalia, is too clear for any
of the public domain.92 Under the Treaty of Paris of misunderstanding. It simply declares that “all
December 10, 1898, the cession of the Philippines did agricultural, timber, and mineral lands of the public
not impair any right to property existing at the domain, waters, minerals, coal, petroleum, and other
time.93 During the mineral oils, all forces of potential energy, and other
American colonial regime, native title to land was natural resources of the Philippines belong to the
respected, even protected. The Philippine Bill of 1902 State.”99 Nowhere does it state that certain lands which
provided that property and rights acquired by the US are “absolutely necessary for social welfare and
through cession from Spain were to be administered for existence,” including those which are not part of the
the benefit of the Filipinos.94 In obvious adherence to public domain, shall thereafter be owned by the State. If
libertarian principles, McKinley’s Instructions, as well as there is any room for constitutional construction, the
the Philippine Bill of 1902, contained a bill of rights provision should be interpreted in favor of the
embodying the safeguards of the US Constitution. One preservation, rather than impairment or extinguishment,
of these rights, which served as an inviolable rule upon of vested rights. Stated otherwise, Section 1, Article XII
every division and branch of the American colonial of the 1935 Constitution cannot be construed to mean
government in the Philippines,95 was that “no person that vested right which had existed then were
shall be deprived of life, liberty, or property without due extinguished and that the landowners were divested of
process of law.”96 These vested rights safeguarded by the their lands, all in the guise of “wrest[ing] control of those
Philippine Bill of 1902 were in turn expressly protected portions of the natural resources [which the State] deems
by the due process clause of the 1935 Constitution. absolutely necessary for social welfare and existence.”
Resultantly, property rights of the indigenous peoples On the contrary, said Section restated the fundamental
over their ancestral lands and ancestral domains were rule against the diminution of existing rights by expressly
firmly established in law. providing that the ownership of lands of the public
Nonetheless, the Solicitor General takes the view domain and other natural resources by the State is
that the vested rights of indigenous peoples to their “subject to any existing right, grant, lease, or
ancestral lands and domains were “abated by the direct concessions.” The “existing rights” that were intended
act by the sovereign Filipino people of ratifying the 1935 to be protected must, perforce, include the right of
Constitution.”97 He advances the following arguments: ownership by indigenous peoples over their ancestral lands
and domains. The words of the law should be given their
The Sovereign, which is the source of all rights including ordinary or usual meaning,100and the term “existing
ownership, has the power to restructure the rights” cannot be assigned an unduly restrictive
consolidation of rights inherent in ownership in the definition.
State. Through the mandate of the Constitutions that Petitioners concede that Congress is mandated
have been adopted, the State has wrested control of under Section 5, Article XII of the 1987
those portions of the natural resources it deems Constitution101 to protect the rights of indigenous
absolutely necessary for social welfare and existence. It peoples to their ancestral lands and ancestral domains.
Nonetheless, they contend that the recognition and other hand, in this proposed amendment the
protection under IPRA of the right of ownership of phraseology is that it is the property rights or relations
indigenous peoples over ancestral lands and ancestral which shall be used as the basis in determining the
domains are far in excess of the legislative power and ownership and extent of the ancestral domain. I assume
constitutional mandate of the Congress,102 since such there must be a certain difference in the customary laws
recognition and protection amount to the alienation of and our regular civil laws on property.
lands of the public domain, which is proscribed under MR. DAVIDE. That is exactly the reason, Madam
Section 2, Article XIIn of the Constitution. President, why we will leave it to Congress to make the
Section 5, Article XII of the Constitution expresses necessary exception to the general law on property
the sovereign intent to “protect the rights of indigenous relations.
peoples to their ancestral lands.” In its general and MR. REGALADO. I was thinking if Commissioner
ordinary sense, the term “right” refers to any legally Bennagen could give us an example of such a customary
enforceable claim.103 It is a power, privilege, faculty or law wherein it is the property rights and relations that
demand inherent in one person and incident upon determine the ownership and the extent of that
another.104 When used in relation to property, “right” ownership, unlike the basic fundamental rule that it is
includes any interest in or title to an object, or any just the ownership and the extent of ownership which
and legal claim to hold, use and enjoy it.105Said provision determine the property rights and relations arising
in the Constitution cannot, by any reasonable therefrom and consequent thereto. Perhaps, these
construction, be interpreted to exclude the protection of customary laws may have a different provision or thrust
the right of ownership over such ancestral lands. For this so that we could make the corresponding suggestions
reason, Congress cannot be said to have exceeded its also by way of an amendment.
constitutional mandate and power in enacting the MR. DAVIDE. That is exactly my own perception.
provisions of IPRA, specifically Sections 7(a) and 8, MR. BENNAGEN. Let me put it this way.
which recognize the right of ownership of the There is a range of customary laws governing certain
indigenous peoplesover ancestral lands. types of ownership. There would be ownership based on
The second paragraph of Section 5, Article XII also individuals, on clan or lineage,
grants Congress the power to “provide for the or on community. And the thinking expressed in the
applicability of customary laws governing property rights consultation is that this should be codified and should
or relations in determining the ownership and extent of be recognized in relation to existing national laws. That
ancestral domains.” In light of this provision, does is essentiallytheconcept.106 (Emphasis supplied.)
Congress have the power to decide whether ancestral The intention to treat ancestral domains as private
domains shall be private property or part of the public property is also apparent from the following exchange
domain? Also, does Congress have the power to between Messrs. Suarez and Bennagen:
determine whether the “extent” of ancestral domains MR. SUAREZ. When we speak of customary laws
shall include the natural resources found therein? governing property rights or relations in determining
It is readily apparent from the constitutional records the ownership and extent of the ancestral domain,
that the framers of the Constitution did not intend are we thinking in terms of the tribal ownership or
Congress to decide whether ancestral domains shall be community ownership or of private ownership
public or private property. Rather, they acknowledged within the ancestral lands or ancestral domain?
that ancestral domains shall be treated as private MR. BENNAGEN. The concept of customary laws is that it is
property, and that customary laws shall merely considered as ownership by privateindividuals,clans and even
determine whether such private ownership is by the communities.
entire indigenous cultural community, or by individuals, MR. SUAREZ. So, there will be two aspects to this
families, or clans within the community. The discussion situation. This means that the State will set aside the
below between Messrs. Regalado and Bennagen and Mr. ancestral domain and there is a separate law for that.
Chief Justice Davide, then members of the 1986 Within the ancestral domain it could accept more
Constitutional Commission, is instructive: specific ownership in terms of individualswithin the
MR. REGALADO. Thank you, Madame President. May ancestrallands.
I seek some clarifications from either Commissioner MR. BENNAGEN. Individuals and groups within the
Bennagen or Commissioner Davide regarding this ancestral domain.107 (Emphasis supplied.)
phrase “CONGRESS SHALL PROVIDE FOR THE It cannot be correctly argued that, because the framers
APPLICABILITY OF CUSTOMARY LAWS of the Constitution never expressly mentioned Cariño in
GOVERNING PROPERTY RIGHTS OR their deliberations, they did not intend to adopt the
RELATIONS in determining the ownership and extent concept of native title to land, or that they were unaware
of the ancestral domain,” because ordinarily it is the law of native title as an exception to the theory of jura
on ownership and the extent thereof which determine regalia.108 The framers of the Constitution, as well as the
the property rights or relations arising therefrom. On the people adopting it, were presumed to be aware of the
prevailing judicial doctrines concerning the subject of but not in terms of the right of a particular person
constitutional provisions, and courts should take these or particular group to exploit, utilize, or sell it.
doctrines into consideration in construing MR. NATIVIDAD. But is clear that the prior rights will
theConstitution.109 be respected.
Having thus recognized that ancestral domains MR. BENNAGEN. Definitely.110
under the Constitution are considered as private Thus, the phrase “subject to the provisions of this
property of indigenous peoples, the IPRA, by affirming Constitution” was intended by the framers of the
or acknowledging such ownership through its various Constitution as a reiteration of the constitutional
provisions, merely abides by the constitutional mandate guarantee that no person shall be deprived of property
and does not suffer any vice of unconstitutionality. without dueprocessof law.
Petitioners interpret the phrase “subject to the There is another reason why Section 5 of Article XII
provisions of this Constitution and national mandating the protection of rights of the indigenous
development policies and programs” in Section 5, peoples to their ancestral lands cannot be construed as
Article XII of the Constitution to mean “as subject to subject to Section 2 of the same Article ascribing
the provision of Section 2, Article XII of the ownership of all public lands to the State. The
Constitution,” which vests in the State ownership of all Constitution must be construed as a whole. It is a rule
lands of the public domain, mineral lands and other that when construction is proper, the whole
natural resources. Following this interpretation, Constitution is examined in order to determine the
petitioners maintain that ancestral lands and ancestral meaning of any provision. That construction should
domains are the property of the State. beusedwhichwould give effect to the entire
This proposition is untenable. Indeed, Section 2, instrument.111
Article XII reiterates the declarations made in the 1935 Thus, the provisions of the Constitution on State
and 1973 Constitutions on the state policy of ownership of public lands, mineral lands and other
conservation and nationalization of lands of the public natural resources should be read together with the other
domain and natural resources, and is of paramount provisions thereof which firmly recognize the rights of
importance to our national economy and patrimony. A the indigenous peoples. These, as set forth herein
close perusal of the records of the 1986 Constitutional before,112 include: Section 22, Article II, providing that the
Commission reveals that the framers of the Constitution State recognizes and promotes the rights of indigenous
inserted the phrase “subject to the provisions of this peoples within the framework of national unify and
Constitution” mainly to prevent the impairment of development; Section 5, Article XII, calling for the
Torrens titles and other prior rights in the determination protection of the rights of indigenous cultural
of what constitutes ancestral lands and ancestral communities to their ancestral lands to ensure their
domains, to wit: economic, social, and cultural well-being, and for the
MR. NATIVIDAD. Just one question. I want to clear applicability of customary laws governing property rights
this section protecting ancestral lands. How does and relations in determining the ownership and extent of
this affect the Torrens title and other prior rights? ancestral domains; Section 1, Article XIII, directing the
MR. BENNAGEN. I think that was also discussed in removal or reduction of social, economic, political and
the committee hearings and we did say that in cases cultural inequities and inequalities by equitably diffusing
where due process is clearly established in terms of wealth and political power for the common good; Section
prior rights, these two have to be respected. 6, Article XIII, directing the application of the principles
MR. NATIVIDAD. The other point is: How vast is this of agrarian reform or stewardship in the disposition and
ancestral land? Is it true that parts of Baguio City are utilization of other natural resources, subject to prior
considered as ancestral lands? rights, homestead rights of small settlers, and the rights
MR. BENNAGEN. They could be regarded as such. If of indigenous communities to their ancestral
the Commissioner still recalls, in one of the lands; Section 17, Article XIV, decreeing that the State
publications that I provided the Commissioners, the shall recognize, respect, and protect the rights of
parts could be considered as ancestral domain in indigenous cultural communities to preserve and
relation to the whole population of Cordillera but develop their cultures, traditions, and institutions;
not in relation to certain individuals or certain and Section 12, Article XVI, authorizing the Congress to
groups. create a consultative body to advise the President on
MR. NATIVIDAD. The Commissioner means that the policies affecting indigenous culturalcommunities.
whole Baguio City is considered as ancestral land? Again, as articulated in the Constitution, the first
goal of the national economy is the more equitable
MR. BENNAGEN. Yes, in the sense that it belongs to distribution of opportunities, income, and wealth.113 Equity is
Cordillera or in the same manner that Filipinos can given prominence as the first objective of national
speak of the Philippine archipelago as ancestral land, economic development.114 The framers of the
Constitution did not, by the phrase “subject to the
provisions of this Constitution and national I am not convinced.
development policies and programs,” Section 3(a) merely defines the coverage of ancestral
intend to establish a hierarchy of constitutional norms. domains, and describes the extent, limit and
As explained by then Commissioner (now Chief Justice) composition of ancestral domains by setting forth the
Hilario G. Davide, Jr., it was not their objective to make standards and guidelines in determining whether a
certain interests primary or paramount, or to create particular area is to be considered as part of and within
absolute limitations or outright prohibitions;rather, the the ancestral domains. In other words, Section 3(a)
idea is towards the balancing of interests: serves only as a yardstick which points out what
BISHOP BACANI. In Commissioner Davide’s properties are within the ancestral domains. It does not
formulation of the first sentence, he says: “The State, confer or recognize any right of ownership over the
SUBJECT TO THE provisions of this Constitution natural resources to the indigenous peoples. Its purpose
AND NATIONAL DEVELOPMENT POLICIES is definitional and not declarative ofa right or title.
AND PROGRAMS shall guarantee the rights of cultural The specification of what areas belong to the
or tribal communities to their ancestral lands to insure ancestral domains is, to our mind, important to ensure
their economic, social and cultural wellbeing. “ There are that no unnecessary encroachment on private properties
at least two concepts here which receive different outside the ancestral domains will result during the
weights very often. They are the concepts of national delineation process. The mere fact that Section 3(a)
development policies and programs, and the rights of defines ancestral domains to include the natural
cultural or tribal communities to their ancestral lands, et resources found therein does not ipso facto convert the
cetera. I would like to ask: When the Commissioner character of such natural resources as private property
proposed this amendment, which was the controlling of the indigenous peoples. Similarly, Section 5 in relation
concept? I ask this because sometimes the rights of to Section 3(a) cannot be construed as a source of
cultural minorities are precisely transgressed in the ownership rights of indigenous people over the natural
interest of national development policies and programs. resources simply because it recognizes ancestral domains
Hence, I would like to know which is the controlling as their “private but community property.”
concept here. Is it the rights of indigenous peoples to The phrase “private but community property” is
their ancestral lands or is it national development merely descriptive of the indigenous peoples’ concept of
policies and programs. ownership as distinguished from that provided in the
MR. DAVIDE. It is not really a question, of which Civil Code. In Civil Law, “ownership” is the
is primary or which is more paramount. The concept “independent and general power of a person over a thing
introduced here is really the balancing of interests. That for purposes recognized by law and within the limits
is what we seek to attain. We have to balance the established thereby.”122 The civil law concept of
interests taking into account the specific needs and the ownership has the following attributes: jus utendi or the
specific interests also of these cultural communities in right to receive from the thing that which it produces, jus
like manner that we did so in the autonomous abutendi or the right to consume the thing by its use, jus
regions.115 (Emphasis supplied.) disponendi or the power to alienate, encumber, transform
B. The provisions of RA. 8371 do not infringe upon and even destroy that which is owned and jus vindicandior
the right to exclude other persons from the possession
the State’s ownership over thenatural resources the thing owned.123 In contrast, the indigenous peoples’
withinthe ancestral domains. concept of ownership emphasizes the importance of
Petitioners posit that IPRA deprives the State of its communal or group ownership. By virtue of the
ownership over mineral lands of the public domain and communal character of ownership, the property held in
other natural resources,116 as well as the State’s full common “cannot be sold, disposed or
control and supervision over the exploration, destroyed”124 because it was meant to benefit the whole
development and utilization of natural indigenous community and not merely the
resources.117 Specifically, petitioners and the Solicitor individualmember.125
General assail Sections 3 (a),118 5,119 and 7120 of IPRA as That IPRA is not intended to bestow ownership
violative of Section 2, Article XII of the Constitution over natural resources to the indigenous peoples is also
which states, in part, that “[a] 11 lands of the public clear from the deliberations of the bicameral conference
domain, waters, minerals, coal, petroleum, and other committee on Section 7 which recites the rights of
mineral oils, all forces of potential energy, fisheries, indigenous peoples over their ancestral domains, to wit:
forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State.”121They would CHAIRMAN FLAVIER. Accepted. Section 8126 rights
have the Court declare as unconstitutional Section 3(a) to ancestral domain, this iswhere we transferredthe other
of IPRA because the inclusion of natural resources in the provision but here itself—
definition of ancestral domains purportedly results in the HON. DOMINGUEZ. Mr. Chairman, if I may be
abdication ofState ownership over theseresources. allowed to make a very short Statement. Earlier, Mr.
Chairman, we have decided to remove the provisions on natural possible for rights over natural resources to vest on a
resources because we all agree that that belongs to the State. Now, private (as opposed to a public) holder if these were held
the plight or the rights of those indigenous communities prior to the 1935 Constitution.”131However, a judicious
living in forest and areas where it could be exploited by examination of Reavies reveals that, contrary to the
mining, by dams, so can we not also provide a provision position of NCIP and Flavier, et al., the Court did not
to give little protection or either rights for them to be recognize native title to natural resources. Rather, it
consulted before any mining areas should be done in merely upheld the right of the indigenous peoples to
their areas, any logging done in their areas or any dam claim ownership of minerals under the Philippine Bill
construction because this has been disturbing our people of1902.
especially in the Cordilleras. So, if there could be, if our While as previously discussed, native title to land or
lawyers or the secretariat could just propose a provision private ownership by Filipinos of land by virtue of time
for incorporation here so that maybe the right to immemorial possession in the concept of an owner was
consultation and the right to be compensated when there acknowledged and recognized as far back during the
are damages within their ancestral lands. Spanish colonization of the Philippines, there was no
CHAIRMAN FLAVIER. Yes, very well taken but to similar favorable treatment as regards natural resources.
the best of my recollection both are already considered The unique value of natural resources has been
in subsequent sections which we are now lookingfor. acknowledged by the State and is the underlying reason
HON. DOMINGUEZ. Thank you. for its consistent assertion of ownership and control
CHAIRMAN FLAVIER. First of all there is a line over said natural resources from the Spanish regime up
that gives priority use for the indigenous people where to the present.132 Natural re-
they are. Number two, in terms of the mines there is a sources, especially minerals, were considered by Spain as
need for prior consultation of source which is here an abundant source of revenue to finance its battles in
already. So, anyway it is on the record that you want to wars against other
make sure that the secretariat takes note of those two nations. Hence, Spain, by asserting its ownership over
issues and my assurance is that it is alreadythereand I will minerals wherever these may be found, whether in
make sure that theycross check. public or private lands, recognized the separability of
HON. ADAMAT. I second that, Mr. Chairman. title over lands and that over minerals which may
CHAIRMAN FLAVIER. Okay, thank you. So we befound therein.133
now move to Section 8, there is a Senate version you do
not have and if you agree we will adopt that.127(Emphasis On the other hand, the United States viewed natural
supplied.) resources as a source of wealth for its nationals. As the
Further, Section 7 makes no mention of any right of owner of natural resources over the Philippines after the
ownership of the indigenous peoples over the natural latter’s cession from Spain, the United States saw it fit to
resources. In fact, Section 7(a) merely recognizes the allow both Filipino and American citizens to explore and
“right to claim ownership over lands, bodies of water exploit minerals in public lands, and to grant patents to
traditionally and actually occupied by indigenous private mineral lands. A person who acquired ownership
peoples, sacred places, traditional hunting and fishing over a parcel of private mineral land pursuant to the laws
grounds, and all improvements made by them at any then prevailing could exclude other persons, even the
time within the domains.” Neither does Section 7(b), State, from exploiting minerals within his
which enumerates certain rights of the indigenous property.134 Although the United States made a
peoples over the natural resources found within their distinction between minerals found in public lands and
ancestral domains, contain any recognition of those found in private lands, title in these minerals was
ownership vis-a-visthe natural resources. in all cases sourced from the State. The framers of the
What is evident is that the IPRA protects the 1935 Constitution found it necessary to maintain the
indigenous peoples’ rights and welfare in relation to the State’s ownership over natural resources to insure their
natural resources found within their ancestral conservation for future generations of Filipinos, to
domains,128 including the preservation of the ecological prevent foreign control of the country through
balance therein and the need to ensure that the economic domination; and to avoid situations whereby
indigenous peoples will not be unduly displaced when “the Philippines would become a source of international
State-approved activities involving the natural resources conflicts, thereby posingdangerto its internal security
located therein are undertaken. and independence.135
Finally, the concept of native title to natural The declaration of State ownership and control over
resources, unlike native title to land, has not been minerals and other natural resources in the 1935
recognized in the Philippines. NCIP and Flavier, et Constitution was reiterated in both the 1973136 and 1987
al. invoke the case of Reavies v. Fianza129 in support of Constitutions.137
their thesis that native title to natural resources has been Having ruled that the natural resources which may be
upheld in this jurisdiction.130 They insist that “it is found within the ancestral domains belong to the State,
the Court deems it necessary to clarify that the are given the responsibility to maintain, develop, protect
jurisdiction of the NCIP with respect to ancestral and conserve the ancestral domains or portions thereof
domains under Section 52 [i] of IPRA extends only to which are found to be necessary for critical watersheds,
thelands and not to thenatural resourcestherein. mangroves, wildlife sanctuaries, wilderness, protected
Section 52[i] provides: areas, forest cover, or reforestation.141
Turnover of Areas Within Ancestral Domains Managed by The Solicitor General argues that these provisions deny
Other Government Agencies.—The Chairperson of the the State an active and dominant role in the utilization of
NCIP shall certify that the area covered is an ancestral our country’s natural resources. Petitioners, on the other
domain. The secretaries of the Department of Agrarian hand, allege that under the Constitution the exploration,
Reform, Department of Environment and Natural development and utilization of natural resources may
Resources, Department of Interior and Local only be undertaken by the State, either directly or
Government, and Department of Justice, the indirectly through co-production, joint venture, or
Commissioner of the National Development production-sharing agreements.142 To petitioners, no
Corporation, and any other government agency claiming other method is allowed by the Constitution. They
jurisdiction over the area shall be notified thereof. Such likewise submit that by vesting ownership of ancestral
notification shall terminate any legal basis for the lands and ancestral domains in the indigenous peoples,
jurisdiction previously claimed. IPRA necessarily gives them control over the use and
Undoubtedly, certain areas that are claimed as ancestral enjoyment of such natural resources, to the prejudice of
domains may still be under the administration of other the State.143
agencies of the Government, such as the Department of Section 2, Article XII of the Constitution provides
Agrarian Reform, with respect to agricultural lands, and in paragraph 1 thereof that the exploration, development
the Department of Environment and Natural Resources and utilization of natural resources must be under the
with respect to timber, forest and mineral lands. Upon full control and supervision of the State, which may
the certification of these areas as ancestral domain directly undertake such activities or enter into co-
following the procedure outlined in Sections 51 to 53 of production, joint venture, or production-sharing
the IPRA, jurisdiction of the government agency or agreements. This provision, however, should not be read
agencies concerned over lands forming part thereof in isolation to avoid a mistaken interpretation that any
ceases. Nevertheless, the jurisdiction of government and all forms of utilization of natural resources other
agencies over the natural resources within the ancestral than the foregoing are prohibited. The Constitution
domains does not terminate by such certification must be regarded as consistent with itself
because said agencies are mandated under existing laws throughout.144No constitutional provision is to be
to administer the natu- separated from all the others, or to be considered alone,
ral resources for the State, which is the owner thereof. all provisions bearing upon a
To construe Section 52[i] as divesting the State, through particular subject are to be brought into view and to be
the government agencies concerned, of jurisdiction over so interpreted as to effectuate the great purposes of the
the natural resources within the ancestral domains would fundamental law.145
be inconsistent with the established doctrine that all In addition to the means of exploration,
natural resourcesareownedby the State. development and utilization of the country’s natural
C. The provisions of IPRA pertaining to the resources stated in paragraph 1, Section 2 of Article XII,
the Constitution itself states in the third paragraph of the
utilization of natural resourcesare same section that Congress may, by law, allow small-scale
notunconstitutional. utilization of natural resources by its citizens.146 Further,
The IPRA provides that indigenous peoples shall have Section 6, Article XIII, directs the State, in the
the right to manage and conserve the natural resources disposition and utilization of natural resources, to apply
found on the ancestral domains, to benefit from and the principles of agrarian reform or
share in the profits from the allocation and utilization of stewardship.147 Similarly, Section 7, Article XIII
these resources, and to negotiate the terms and mandates the State to protect the rights of subsistence
conditions for the exploration of such natural fishermen to the preferential use of marine and fishing
resources.138 The statute also grants them priority rights resources.148 Clearly,
in the harvesting, extraction, development or Section 2, Article XII, when interpreted in view of the
exploitation of any natural resources within the ancestral pro-Filipino, pro-poor philosophy of our fundamental
domains.139 Before the NCIP can law, and in harmony with the other provisions of the
issue a certification for the renewal, or grant of any Constitution rather as a sequestered
concession, license or lease, or for the perfection of any pronouncement,149 cannot be construed as a prohibition
production-sharing agreement the prior informed against any and all forms of utilization of natural
written consent of the indigenous peoples concerned resources without the State’s direct participation.
must be obtained.140 In return, the indigenous peoples
Through the imposition of certain requirements and regulations, with due regard to the needs and welfare of
conditions for the exploration, development and indigenous peoples living in the area.
utilization of the natural resources under existing There is nothing in the assailed law which implies an
laws,150 the State retains full control over such activities, automatic or mechanical character in the grant of
whetherdoneon small-scale basis151 or otherwise. concessions. Nor does the law negate the exercise of
The rights given to the indigenous peoples regarding sound discretion by government entities. Several factors
the exploitation of natural resources under Sections 7(b) still have to be considered. For example, the extent and
and 57 of IPRA amplify what has been granted to them nature of utilization and the consequent impact on the
under existing laws, such as the Small-Scale Mining Act environment and on the indigenous peoples’ way of life
of 1991 (R.A. 7076) and the Philippine Mining Act of are important considerations. Moreover, the indigenous
1995 (R.A. 7942). R.A. 7076 expressly provides that peoples must show that they live in the area and that they
should an ancestral land be declared as a people’s small- are in the best position to undertake the required
scale mining area, the members of the indigenous utilization.
peoples living within said area shall be given priority in the It must be emphasized that the grant of said priority
awarding of small-scale mining contracts.152 R.A. 7942 declares rights to indigenous peoples is not a blanket authority to
that no ancestral land shall be opened for mining operations disregard pertinent laws and regulations. The utilization
without the prior consent of the indigenous cultural community of said natural resources is always subject to compliance
concerned153 and in the event that the members of such by the indigenous peoples with existing laws, such as
indigenous cultural community give their consent to R.A. 7076 and R.A. 7942 since it is not they but the State,
mining operations within their ancestral land, royalties which owns these resources.
shall be paid to them by theparties to themining It also bears stressing that the grant of priority rights
contract.154 does not preclude the State from undertaking activities,
In any case, a careful reading of Section 7(b) would or entering into coproduction, joint venture or
reveal that the rights given to the indigenous peoples are production-sharing agreements with private entities, to
duly circumscribed. These rights are limited only to the utilize the natural resources which may be located within
following: to manage and conserve natural resources within the ancestral domains. There is no intention, as between
territories and uphold it for future generations; to benefit the State and the indigenous peoples, to create a
and share the profits from allocation and utilization of the hierarchy of values; rather, the object is to balance the
natural resources found therein; to negotiate the terms and interests of the State for national development and those
conditions for the exploration of natural resources in the areas of the indigenous peoples.
for the purpose of ensuring ecological, environmental Neither does the grant of priority rights to the
protection and the conservation measures, pursuant to indigenous peoples exclude non-indigenous peoples
national and customary laws; to an informed and intelligent from undertaking the same activities within the ancestral
participation in the formulation and implementation of domains upon authority granted by the proper
any project, government or private, that will affect or governmental agency. To do so would unduly limit the
impact upon the ancestral domains and to receive just and ownership rights of the State over the natural resources.
fair compensation for any damages which they may sustain To be sure, the act of the State of giving preferential
as a result of the project, and the right to effective right to a particular sector in the utilization of natural
measuresby the government to prevent any interference resources is nothing new. As previously mentioned,
with, alienation andencroachment of theserights. Section 7, Article XIII of the Constitution mandates the
It must be noted that the right to negotiate terms and protection by the State of “the rights of subsistence
conditions granted under Section 7(b) pertains only to fishermen, especially of local communities, to the
the exploration of natural resources. The term preferential
“exploration” refers only to the search or prospecting of use of communal marine and fishing resources, both
mineral resources, or any other means for the purpose inland and offshore.”
of determining the existence and the feasibility of mining Section 57 further recognizes the possibility that the
them for profit.155 The exploration, which is merely a exploration and exploitation of natural resources within
preliminary activity, cannot be equated with the entire the ancestral domains may disrupt the natural
process of “exploration, development and utilization” of environment as well as the traditional activities of the
natural resources which under the Constitutionbelong to indigenous peoples therein. Hence, the need for the
theState. prior informed consent of the indigenous peoples before
Section 57, on the other hand, grants the indigenous any search for or utilization of the natural resources
peoples “priority rights” in the utilization of natural within their ancestral domains is undertaken.
resources and not absolute ownership thereof. Priority In a situation where the State intends to directly or
rights does not mean exclusive rights. What is granted is indirectly undertake such activities, IPRA requires that
merely the right of preference or first consideration in the prior informed consent of the indigenous peoples be
the award of privileges provided by existing laws and obtained. The State must, as a matter of policy and law,
consult the indigenous peoples in accordance with the Sec. 56. Existing Property Rights Regimes.—Property rights
intent of the framers of the Constitution that national within the ancestral domains already existing and/or
development policies and programs should involve a vested upon effectivity of this Act, shall be
systematic consultation to balance local needs as well as recognizedandprotected.
national plans. As may be gathered from the discussion Petitioners, however, contend that Section 56 aims to
of the framers of the Constitution on this point, the protect only the vested rights of indigenous peoples, but
national plan presumably takes into account the not those who are not members of such communities.
requirements of the region after thorough Following their interpretation, IPRA, under Section 56,
consultation.156To this end, IPRA grants to the recognizes the rights of indigenous peoples to their
indigenous peoples the right to an informed and ancestral lands and ancestral domains, subject to the vested
intelligent participation in the formulation and rights of the same communities to such ancestral lands and ancestral
implementation of any project, government or private, domains.Such interpretation is obviously incorrect.
and the right not to be removed therefrom without their The “property rights” referred to in Section 56
free and prior informed consent.157 As to non-members, belong to those acquired by individuals, whether
the prior informed consent takes the form of a formal indigenous or non-indigenous peoples. Said provision
and written agreement between the indigenous peoples makes no distinction as to the ethnic origins of the
and non-members under the proviso in Section 57 in ownership of these “property rights.” The IPRA thus
case the State enters into a co-production, joint venture, recognizes and respects “vested rights” regardless of
or production-sharing agreement with Filipino citizens, whether they pertain to indigenous or non-indigenous
or corporations. This requirement is not peculiar to peoples. Where the law does not distinguish, the courts
IPRA. Existing laws and regulations, such as the should not distinguish.163 What IPRA only requires is
Philippine Environmental Policy,158 the Environmental that these “property rights” already exist and/or
Impact System,159 the Local Government Code160 vestedupon its effectivity.
and the Philippine Mining Act of 1995161 already require Further, by the enactment of IPRA, Congress did
increased consultation and participation of stakeholders, not purport to annul any and all Torrens titles within
such as indigenous peoples, in the planning of activities areas claimed as ancestral lands or ancestral domains.
with significant environment impact. The statute imposes strict procedural requirements for
The requirement in Section 59 that prior written the proper delineation of ancestral lands and ancestral
informed consent of the indigenous peoples must be domains as safeguards against the fraudulent deprivation
procured before the NCIP can issue a certification for of any landowner of his land, whether or not he is
the “issuance, renewal, or grant of any concession, member of an indigenous cultural community. In all
license or lease, or to the perfection of any production- proceedings for delineation of ancestral lands and
sharing agreement,” must be interpreted, not as a grant ancestral domains, the Director of Lands shall appear to
of the power to control the exploration, development represent the interest of the Republic of the
and utilization of natural resources, but merely the Philippines.164With regard to ancestral domains, the
imposition of an additional requirement for such following procedure is mandatory: first, petition by an
concession or agreement. The clear intent of the law is indigenous cultural community, or motu proprio by the
to protect the rights and interests of the indigenous NCIP; second, investigation and census by the Ancestral
peoples which may be adversely affected by the domains Office (“ADO”) of the
operation of such entities or licensees. NCIP; third, preliminary report by the
Corollary Issues ADO; fourth, posting and publication;
and lastly,evaluation by the NCIP upon submission of
A. IPRA does not violate the Due Process clause. the final report of the ADO.165 With regard to ancestral
The first corollary issue raised by petitioners is whether lands, unless such lands are within an ancestral domain,
IPRA violates Section 1, Article III of the Constitution, the statute imposes the following procedural
which provides that “no person shall be deprived of life,
requirements: first, application; second,posting and
liberty, or property without due process of law, nor shall
publication; third, investigation and inspection by the
any person be deprived the equal protection of the laws.” ADO; fourth, delineation; lastly, evaluation by the NCIP
Petitioners maintain that the broad definition of upon submission of a report by the ADO.166 Hence, we
ancestral lands and ancestral domains under Section 3(a)
cannot sustain the arguments of the petitioners that the
and 3(b) of IPRA includes private lands. They argue that
law affords no protection to those who arenot
the inclusion of private lands in the ancestral lands and indigenous peoples.
ancestral domains violates the due process Neither do the questioned sections of IPRA on the
clause.162 Petitioners’ contention is erroneous.
composition and powers and jurisdiction of the
Sections 3(a) and 3(b) expressly provide that the
NCIP167 and the application of customary law,168 violate
definition of ancestral lands and ancestral domains are thedue process clauseof the Constitution.
“subject to Section 56,” which reads:
Petitioners point out that IPRA provides that the present a workable solution acceptable to the parties,
NCIP shall be composed exclusively of members of who are members of the same indigenous group. This
indigenous peoples,169 and that the NCIP shall have interpretation is supported by Section 1, Rule IX of the
jurisdiction over all claims and disputes involving Implementing Rules which states:
indigenous peoples,170 including even disputes between
a RULE IX. JURISDICTION AND PROCEDURES
member of such communities and one who is not a FOR
member, as well as over disputes in the delineation of ENFORCEMENT OF RIGHTS
ancestral domains.171Petitioners clarify that they do not
claim that the members of the NCIP are incapable of Section 1. Primacy of Customary Law.—All conflicts related
being fair and impartial judges. They merely contend that to ancestral domains and lands, involving ICCs/IPs,
the NCIP will not appear to be impartial, because a party such as but not limited to conflicting claims and
who is not a member of an indigenous cultural boundary disputes, shall be resolved by the concerned
community “who must defend his case against [one who parties through the application of customary laws in the
is] before judges who are all members of [indigenous area where the disputed ancestral domain or land is
peoples] cannot but harbor a suspicion that they do not located.
have thecoldneutrality of an impartial judge.”172 In All conflicts related to the ancestral domains or lands where
addition, petitioners claim that IPRA prescribes that one of the parties is a non-ICC/IP or where the dispute could not
customary laws shall be applied first in disputes be resolved through customary law shall be heard and adjudicated
involving property, succession and land,173 and that such in accordance with the Rules on Pleadings, Practice and Procedures
laws shall likewise be used in before the NCIP to be adopted hereafter. (Emphasis
disputes involving indigenous peoples.174 They assert supplied.)
that “[w]hen the dispute involves a member of an The application of customary law is limited to disputes
[indigenous cultural community and another who is not], concerning property rights or relations in determining the ownership
a resolution of such a dispute based on customary laws. and extent of the ancestral domains,177 where all the parties
. . would clearly be a denial of due process . . . [because involved are members of indigenous
those who are not indigenous peoples] do not know peoples,178 specifically, of the same indigenous group. It
what these customary laws are.”175 therefore follows that when one of the parties to a
Petitioners’ concerns are unfounded. The fact that dispute is a non-member of an indigenous group, or
the NCIP is composed of members of the indigenous when the indigenous peoples involved belong to
peoples does not mean that it (the NCIP) is incapable, different groups, the applicationof customary law isnot
or will appear to be so incapable, of delivering justice to required.
the non-indigenous peoples. A person’s possession of Like any other law, the objective of IPRA in
the trait of impartiality desirable of a judge has nothing prescribing the primacy of customary law in disputes
to do with his or her ethnic roots. In this wise, the concerning ancestral lands and domains where all parties
indigenous peoples are as capable of rendering justice as involved are indigenous peoples is justice. The utilization
the non-indigenous peoples for, certainly, the latter have of customary laws is in line with the constitutional policy
no monopoly of the conceptofjustice. of recognizing the application thereof through
In any case, there are sufficient checks in the law legislation passed by Congress.
against any abuse by the NCIP of its quasi-judicial Furthermore, the recognition and use of customary
powers. Section 67 states that the decision of the NCIP law is not a novel idea in this jurisdiction. Under the Civil
shall be appealable to the Court of Appeals by petition Code, use of customary law is sanctioned, as long as it is
for review. The regular remedies under our rules of proved as a fact according to the rules of
procedure are likewise available to any party aggrieved evidence,179 and it is not contrary to law, public order or
by the decision of the NCIP. public policy.180 Moreover, the Local Government Code
Anent the use of customary laws in determining the of 1991 calls for the recognition and application of
ownership and extent of ancestral domains, suffice it to customary laws to the resolution of issues involving
say that such is allowed under paragraph 2, Section 5 of members of indigenous peoples. This law admits the
Article XII of the Constitution. Said provision states, operation of customary laws in the settling of disputes if
“The Congress may provide for the applicability of such are ordinarily used in barangays where majority of
customary laws governing property rights and relations the inhabitants are membersof indigenouspeoples.181
in determining the ownership and extent of the ancestral
domains.” Notably, the use of customary laws under
IPRA is not absolute, for the law speaks merely
of primacy of use.176 The IPRA prescribes the application
of such customary laws where these
B. Section 1, Part II, Rule VII of the Implementing an administrative body independent of the executive
branch or one not subject to a superior head of
Rules of IPRA does not infringe upon the department, as distinguished from a “subordinate
President’s power of control over the Executive agency” or an administrative body whose action is
Department subjectto administrative review or revision.186
The second corollary issue is whether the Implementing That Congress did not intend to place the NCIP
Rules of IPRA violate Section 17, Article VII of the under the control of the President in all instances is
Constitution, which provides that: evident in the IPRA itself, which provides that the
The President shall have control of all the executive decisions of the NCIP in the exercise of its quasi-judicial
departments, bureaus, and offices. He shallensure that functions shall be appealable to the Court of
the laws be faithfully executed. Appeals,187 like those of the National Labor Relations
The assailedprovision of the ImplementingRules Commission (NLRC) and the Securities and Exchange
provides: Commission (SEC). Nevertheless, the NCIP, although
Rule VII. The National Commission on Indigenous independent to a certain degree, was placed by Congress
Peoples (NCIP) “under the office of the President” and, as such, is still
xxx subject to the President’s power of control and
Part II: NCIP as an Independent Agency Under the supervision granted under Section 17, Article VII of the
Office of the President Constitution188 with respect to its performance of
Section 1. The NCIP is the primary agency of administrative functions, such as the following: (1) the
government for the formulation and implementation of NCIP must secure the President’s approval in obtaining
policies, plans and programs to recognize, promote and loans to finance its projects;189 (2) it must obtain the
protect the rights and well-being of indigenous peoples. President’s approval for any negotiation for funds and
It shall be an independent agency under the Office of for the acceptance of gifts and/or properties in whatever
the President. As such, the administrative relationship of the form and from whatever source;190 (3) the NCIP shall
NCIP to the Office of the President is characterized as a lateral submit annual reports of its operations and
but autonomous relationship for purposes of policy and program achievements to the President, and advise the latter on
coordination. This relationship shall be carried out through all matters relating to the indigenous peoples; 191 and (4)
a system of periodic reporting. Matters of day-to-day it shall exercise such other powers as may be directed by
administration or all those pertaining to internal the President.192 The President is also given the power
operations shall be left to the discretion of the to appoint the Commissioners of the NCIP193 as well as
Chairperson of the Commission, as the Chief Executive to remove them from office for cause motu proprio or
Officer. upon the recommendation of any indigenous
Petitioners asseverate that the aforecited rule infringes community.194
upon the power of control of the President over the
NCIP by characterizing the relationship of the NCIP to To recapitulate:
the Office of the President as “lateral but autonomous .
. . for purposes of policy and program coordination.” 1. (1)The provisions of the IPRA (specifically
Although both Section 40 of the IPRA and Section Sections 3, paragraphs [a] and [b], 5, 6, 7, and
1, Part II, Rule VII of the Implementing Rules 8) affirming the ownership by the indigenous
characterize the NCIP as an independent agency under peoples of their ancestral lands and domains
the Office of the President, such characterization does by virtue of native title do not diminish the
not remove said body from the President’s control and State’s ownership of lands of the public
supervision. domain, because said ancestral lands and
The NCIP has been designated under IPRA as the domains are considered as private land, and
primary government agency responsible for the never to have been part of the public domain,
formulation and implementation of policies, plans and following the doctrine laid down in Cariño vs.
programs to promote and protect the rights and well Insular Government;195
being of the indigenous peoples and the recognition of 2. (2)The constitutional provision vesting
their ancestral domain as well as their rights thereto.182 It ownership over minerals, mineral lands and
has been granted administrative,183 quasi- other natural resources in the State is not
legislative and quasi-judicial powers185 to carry out its
184
violated by Sections 3, 5, 7, 56, 57, 58 and 59
mandate. The diverse nature of the NCIP’s functions of the IPRA which grant certain rights to the
renders it impossible to place said agency entirely under indigenous peoples over the natural resources
the control of only one branch of government and this, found within the ancestral domains, e.g., to
apparently, is the reason for its characterization by benefit from and share in the profits from the
Congress as an independent agency. An “independent allocation and utilization of the same, as well
agency” is defined as as priority rights in the harvesting, extraction,
development or exploitation thereof. The SEPARATE OPINION
State retains full control over the exploration,
development and utilization of natural MENDOZA, J.:
resources even with the grant of said rights to
the indigenous peoples, through the This suit was instituted to determine the constitutionality
imposition of requirements and conditions of certain provisions of R.A. No. 8371, otherwise known
for the utilization of natural resources under as the Indigenous Peoples Rights Act. Petitioners do not
existing laws, such as the Small-Scale Mining complain of any injury as a result of the application of
Act of 1991196 and the Philippine Mining Act the statute to them. They assert a right to seek an
of 1995.197 Moreover, the rights granted to adjudication of constitutional questions as citizens and
indigenous peoples for the utilization of taxpayers, upon the plea that the questions raised are of
natural resources within their ancestral “transcendental importance.”
domains merely amplify what has been earlier The judicial power vested in this Court by Art. VIII,
granted to them under the aforesaid laws; §1 extends only to cases and controversies for the
3. (3)While the IPRA recognizes the rights of determination of such proceedings as are established by
indigenous peoples with regard to their law for the protection or enforcement of rights, or the
ancestral lands and domains, it also protects prevention, redress or punishment of wrongs.1 In this
the vested rights of persons, whether case, the purpose of the suit is not to enforce a property
indigenous or non-indigenous peoples, who right of petitioners against the government and other
may have acquired rights of ownership lands respondents or to demand compensation for injuries
or rights to explore and exploit natural suffered by them as a result of the enforcement of the
resources within the ancestral lands and law, but only to settle what they believe to be the
domains;198 doubtful character of the law in question. Any judgment
that we render in this case will thus not conclude or bind
1. (4)The Due Process Clause of the real parties in the future, when actual litigation will bring
Constitution is not violated by the provisions to the Court the question of the constitutionality of such
(Sections 40, 51-54, 62, 63, 65 and 66) of the legislation. Such judgment cannot be executed as it
IPRA which, among others, establish the amounts to no more than an expression of opinion upon
composition of the NCIP, and prescribe the the validity of the provisions of the law in question. 2
application of customary law in certain I do not conceive it to be the function of this Court
disputes involving indigenous peoples. The under Art. VIII, §1 of the Constitution to determine in
fact the NCIP is composed wholly of the abstract whether or not there has been a grave abuse
indigenous peoples does not mean that it is of discretion amounting to lack or excess of jurisdiction
incapable of being impartial. Moreover, the on the part of the legislative and executive departments
use of customary laws is sanctioned by in enacting the IPRA. Our jurisdiction is confined to
paragraph 2, Section 5 ofArticle XII ofthe cases or controversies. No one reading Art. VIII, §5 can
Constitution;and fail to note that, in enumerating the matters placed in the
2. (5)The provision of the Implementing Rules keeping of this Court, it uniformly beginswith the phrase
characterizing the NCIP as an independent “all cases . . .”
agency under the Office of the President does The statement that the judicial power includes the
not infringe upon the President’s power of duty to determine whether there has been a grave abuse
control under Section 17, Article VII of the of discretion was inserted in Art. VIII, §1 not really to
Constitution, since said provision as well as give the judiciary a roving commission to right any
Section 40 of the IPRA expressly places the wrong it perceives but to preclude courts from invoking
NCIP under the Office of the President, and the political question doctrine in order to evade the
therefore under the President’s control and decision of certain cases even where violations of civil
supervision with respect to its administrative liberties are alleged.
functions. However, insofar as the decisions The statement is based on the ruling of the Court
of the NCIP in the exercise of its quasi- in Lansang v. Garcia,3 in which this Court, adopting the
judicial powers are concerned, the same are submission of the Solicitor General, formulated the
reviewable by the CourtofAppeals, like those following test of its jurisdiction in such cases:
of the NLRC and the SEC. [J]udicial inquiry into the basis of the questioned
proclamation can go no further than to satisfy the
In viewof theforegoing, I vote to DISMISS thepetition. Court not that the President’s decision is correctand that
public safety was endangered by the rebellion and
justified the suspension of the writ, but that in
suspending the writ, the President did not act arbitrarily.
issuance of his commission as justice of the peace of the
That is why Art. VII, §18 now confers on any citizen District of Columbia only to declare in the end that after
standing to question the proclamation of martial law or all mandamus did not lie, because §13 of the Judiciary
the suspension of the privilege of the writ of habeas Act of 1789, which conferred original jurisdiction on the
corpus. It is noteworthy that Chief Justice Roberto United States Supreme Court to issue the writ of
Concepcion, who chaired the Committee on the mandamus, was unconstitutional as the court’s
Judiciary of the Constitutional Commission, was the jurisdiction is mainly appellate.
author of the opinions of the Court in Lopez v. Today Marbury v. Madison is remembered for the
Roxas and Lansang v. Garcia. institution of the power of judicial review, and so that
Indeed, the judicial power cannot be extended to there can be no doubt of this power of our Court, we in
matters which do not involve actual cases or this country have enshrined its principle in Art. VIII, §1.
controversies without upsetting the balance of power Now, the exercise of judicial review can result either in
among the three branches of the government and the invalidation of an act of Congress or in upholding it.
erecting, as it were, the judiciary, particularly the Hence, the checking and legitimating functions of
Supreme Court, as a third branch of Congress, with judicial review so well mentioned in thedecisions7 of this
power not only to invalidate statutes but even to rewrite Court.
them. Yet that is exactly what we would be permitting in To decline, therefore, the exercise of jurisdiction
this case were we to assume jurisdiction and decide where there is no genuine controversy is not to show
wholesale the constitutional validity of the IPRA timidity but respect for the judgment of a coequal
contrary to the established rule that a party can question department of government whose acts, unless shown to
the validity of a statute only if, as applied to him, it is be clearly repugnant to the fundamental law, are
unconstitutional. Here the IPRA is sought to be declared presumed to be valid. The polestar of constitutional
void on its face. adjudication was set forth by Justice Laurel in
The only instance where a facial challenge to a the Angara case when he said that “this power of judicial
statute is allowed is when it operates in the area of review is limited to actual cases and controversies to be
freedom of expression. In such instance, the exercised after full opportunity of argument by the
overbreadth doctrine permits a party to challenge the parties, and limited further to the constitutional question
validity of a statute even though as applied to him it is raised or the very lis mota, presented.”8 For the exercise
not unconstitutional but it might be if applied to others of this power is legitimate only in the last resort, and as
not before the Court whose activities are constitutionally a necessity in the determination of real, earnest, and vital
protected. Invalidation of the statute “on its face” rather controversy between individuals.9 Until, therefore, an
than “as applied” is permitted in the interest of actual case is brought to test the constitutionality of the
preventing a “chilling” effect on freedom of expression. IPRA, the presumption of constitutionality, which
But in other cases, even if it is found that a provision of inheres in every statute, must be accorded to it.
a statute is unconstitutional, courts will decree only Justice Kapunan, on the other hand, cites the
partial invalidity unless the invalid portion is so far statement in Severino v. Governor General,10 reiterated
inseparable from the rest of the statute that a declaration in Tañada v. Tuvera,11 that “when the question is one of
of partial invalidity is not possible. public right and the object of mandamus to procure the
For the Court to exercise its power of review when enforcement of a public duty, the people are regarded as
there is no case or controversy is not only to act without the real party in interest, and the relator at whose
jurisdiction but also to run the risk that, in adjudicating instigation the proceedings are instituted need not show
abstract or hypothetical questions, its decision will be that he has any legal or special interest in the result, it
based on speculation rather than experience. Deprived being sufficient that he is a citizen and as such is
of the opportunity to observe the impact of the law, the interested in the execution of the laws.” On the basis of
Court is likely to equate questions of constitutionality this statement, he argues that petitioners have standing
with questions of wisdom and is thus likely to intrude tobring theseproceedings.12
into the domain of legislation. Constitutional In Severino v. Governor General,13 the question was
adjudication, it cannot be too often repeated, cannot take whether mandamus lay to compel the Governor General
place in a vacuum. to call a special election on the ground that it was his
duty to do so. The ruling was that he did not have such
Some of the brethren contend that not deciding the a duty. On the other hand, although mandamus was
constitutional issues raised by petitioners will be a issued in Tañada v. Tuvera, it was clear that petitioners had
“galling cop out”4 or an “advocacy of timidity, let alone standing to bring the suit, because the public has a right
isolationism.”5 To decline the exercise of jurisdiction in to know and the failure of respondents to publish all
this case is no more a “cop out” or a sign of “timidity” decrees and other presidential issuances in the Official
than it was for Chief Justice Marshall in Marbury v. Gazette placed petitioners in danger of violating those
Madison6 to hold that petitioner had the right to the decrees and issuances. But, in this case, what public right
is there for petitioners to enforce when the IPRA does resources,” which the Constitution expressly
not apply to them except in general and in common requires to “be under the full control and
withother citizens? supervisionof the State.”
For the foregoing reasons I vote to dismiss the
petition in this case. True, our fundamental law mandates the protection of
SEPARATE OPINION the indigenous cultural communities’ right to their
(CONCURRING AND DISSENTING) ancestral lands, but such mandate is “subject to the
provisions of this Constitution.”4 I concede that
PANGANIBAN, J.: indigenous cultural communities and indigenous peoples
(ICCs/IPs) may be accorded preferential rights to the
beneficial use of public domains, as well as priority in the
I concur with the draft ponencia of Mr. Justice Santiago
exploration, development and utilization of natural
M. Kapunan in its well-crafted handling of the
resources. Such privileges, however, must be subject to
procedural or preliminary issues. In particular, I agree
the fundamental law.
that petitioners have shown an actual case or
Consistent with the social justice principle of giving
controversy involving at least two constitutional
more in law to those who have less in life, Congress in
questions of transcendental importance,1 which deserve
its wisdom may grant preferences and prerogatives to
judicious disposition on the merits directly by the highest
our marginalized brothers and sisters, subject to the
court of the land.2 Further, I am satisfied that the various
irreducible caveat that the Constitution must be
aspects of this controversy have been fully presented and
respected. I personally believe in according every benefit
impressively argued by the parties. Moreover,
to the poor, the oppressed and the disadvantaged, in
prohibition and mandamus are proper legal remedies3 to
order to empower them to equally enjoy the blessings of
address the problems raised by petitioners. In any event,
nationhood. I cannot, however, agree to legitimize perpetual
this Court has given due course to the Petition, heard
inequality of access to the nation’s wealth or to stamp the Court’s
oral arguments and required the submission of
imprimatur on a law that offends and degrades the repository of the
memoranda. Indeed, it would then be a galling copout
very authority of this Court—the Constitution of the Philippines.
for us to dismiss it on mere technical or procedural
grounds.
Protectionof Indigenous Peoples’ Rights Must Be The Constitution Is a Compact
My basic premise is that the Constitution is the
Within the Constitutional Framework
fundamental law of the land, to which all other laws must
With due respect, however, I dissent from
conform.5 It is the people’s quintessential act of
the ponencia’s resolution of the two main substantive
sovereignty, embodying the principles upon which the
issues, which constitute the core of this case. Specifically,
State and the government are founded.6 Having the
I submit that Republic Act (RA) No. 8371, otherwise
status of a supreme and all-encompassing law, it speaks
known as the Indigenous Peoples’ Rights Act (IPRA) of
for all the people all the time, not just for the majority or
1997, violates and contravenes the Constitution of the
for the minority at intermittent times. Every constitution
Philippines insofar as—
is a compact made by and among the citizens of a State
to govern themselves in a certain manner.7 Truly, the
1. 1.It recognizes or, worse, grants rights of Philippine Constitution is a solemn covenant made by all
ownership over lands of the public domain, the Filipinos to govern themselves. No group, however
waters, xxx and other natural resources” blessed, and no sector, however distressed, is exempt
which, under Section 2, Article XII of the from its compass.
Constitution, “are owned by the State” and RA 8371, which defines the rights of indigenous
“shall not be alienated.” I respectfully reject cultural communities and indigenous peoples,
the contention that “ancestral lands and admittedly professes a laudable intent. It was primarily
ancestral domains are not public lands and enacted pursuant to the state policy enshrined in our
have never been owned by the State.” Such Constitution to “recognize and promote the rights of
sweeping statement places substantial portions of indigenous cultural communities within the framework
Philippine territory outside the scope of the Philippine of national unity and development.”8 Though laudable
Constitution and beyond the collective reach of the and well-meaning, this statute, however, has provisions
Filipino people. As will be discussed later, these real that run directly afoul of our fundamental law from
properties constitute a third of the entire Philippine which it claims origin and authority. More specifically,
territory; and the resources, 80 percent of the nation’s Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and other
natural wealth. related provisions contravene the Regalian Doctrine—
2. 2.It defeats, dilutes or lessens the authority of the basic foundationof the State’s property regime.
the State to oversee the “exploration,
development, and utilization of natural
Public Domains and NaturalResources Are development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-
Ownedbythe State and Cannot Be Alienatedor five years, renewable for another twenty-five years,
Ceded except as to water rights for irrigation, water supply,
Jura regalia was introduced into our political system upon fisheries, or industrial uses other than the development
the “discovery” and the “conquest” of our country in the of water power, in which cases beneficial use may be the
sixteenth century. Under this concept, the entire earthly measure and the limit of the grant.”
territory known as the Philippine Islands was acquired The concept was carried over in the 1973 and the 1987
and held by the Crown of Spain. The King, as then head Constitutions. Hence, Sections 8 and 9, Article XIV of
of State, had the supreme power or exclusive dominion the 1973 Constitution, state:
over all our lands, waters, minerals and other natural “SEC. 8. All lands of the public domain, waters,
resources. By royal decrees, though, private ownership minerals, coal, petroleum and other mineral oils, all
of real property was recognized upon the showing of (1) forces of potential energy, fisheries, wildlife, and other
a title deed; or (2) ancient possession in the concept of natural resources of the Philippines belong to the State.
owner, according to which a title could be obtained by With the exception of agricultural, industrial or
prescription.9 Refusal to abide by the system and its commercial, residential, and resettlement lands of the
implementing laws meant the abandonment or waiver of public domain, natural resources shall not be alienated
ownership claims. and no license, concession, or lease for the exploration,
By virtue of the 1898 Treaty of Paris, the Philippine development, exploitation, utilization of any of the
archipelago was ceded to the United States. The latter natural resources shall be granted for a period exceeding
assumed administration of the Philippines and twenty-five years, renewable for not more than twenty-
succeeded to the property rights of the Spanish Crown. five years, except as to water rights for irrigation, water
But under the Philippine Bill of 1902, the US supply, fisheries, or industrial uses other than the
Government allowed and granted patents to Filipino and development of water power, in which cases beneficial
US citizens for the “free and open xxx exploration, use may be the measure and the limit of the grant.
occupation and purchase [of mines] and the land in SEC. 9. The disposition, exploration, development,
which they are found.”10 To a certain extent, private exploitation, or utilization of any of the natural resources
individuals were entitled to own, exploit and dispose of of the Philippines shall be limited to citizens of the
mineral resources and other rights arising from mining Philippines, or to corporations or associations at least
patents. sixty per centum of the capital of which is owned by such
This US policy was, however, rejected by the citizens. The National Assembly, in the national interest,
Philippine Commonwealth in 1935 when it crafted and may allow such citizens, corporations, or associations to
ratified our first Constitution. Instead, the said enter into service contracts for financial, technical,
Constitution embodied the Regalian Doctrine, which management, or other forms of assistance with any
more definitively declared as belonging to the State all foreign person or entity for the exploration,
lands of the public domain, waters, minerals and other development, exploitation, or utilization of any of the
natural resources.11 Although respecting mining natural resources. Existing valid and binding service
patentees under the Philippine Bill of 1902, it restricted contracts for financial, technical, management, or other
the further exploration, development and utilization of forms of assistance are hereby recognized as such.”
natural resources, both as to who might be entitled to Similarly, Section 2, Article XII of the 1987 Constitution,
undertake such activities and for how long. The provides:
pertinent provision reads:
“SEC. 2. All lands of the public domain, waters,
“SECTION 1. [Art. XIII]. All agricultural, timber, and minerals, coal, petroleum, and other mineral oils, all
mineral lands of the public domain, waters, minerals, forces of potential energy, fisheries, forests or timber,
coal, petroleum, and other mineral oils, all forces of wildlife, flora and fauna, and other natural resources are
potential energy, and other natural resources of the owned by the State. With the exception of agricultural
Philippines belong to the State, and their disposition, lands, all other natural resources shall not be alienated.
exploitation, development, or utilization shall be limited The exploration, development, and utilization of natural
to citizens of the Philippines, or to corporations or resources shall be under the full control and supervision
associations at least sixty per centum of the capital of of the State. The State may directly undertake such
which is owned by such citizens, subject to any existing activities, or it may enter into co-production, joint
right, grant, lease, or concession at the time of the venture, or production-sharing agreements with Filipino
inauguration of the Government established under this citizen, or corporations or associations at least sixty per
Constitution. Natural resources, with the exception of centum of whose capital is owned by such citizens. Such
public agricultural land, shall not be alienated, and agreements may be for a period not exceeding twenty-
license, concession, or lease for the exploitation, five years, renewable for not more than twenty-five
years, and under such terms and conditions as may be “SEC. 3. Lands of the public domain are classified into
provided by law. In cases of water rights for irrigation, agricultural, forest or timber, mineral lands, and national
water supply, fisheries, or industrial uses other than the parks. Agricultural lands of the public domain may be
development of water power, beneficial use may be the further classified by law according to the uses to which
measure and limit of the grant. they may be devoted. Alienable lands of the public
“The State shall protect the nation’s marine wealth domain shall be limited to agricultural lands. Private
in its archipelagic waters, territorial sea, and exclusive corporations or associations may not hold such alienable
economic zone, and reserve its use and enjoyment lands of the public domain except by lease, for a period
exclusively to Filipino citizens. not exceeding twenty-five years, renewable for not more
“The Congress may, by law, allow small-scale than twenty-five years, and not to exceed one thousand
utilization of natural resources by Filipino citizens, as hectares in area. x x x.”
well as cooperative fish farming, with priority to Mr. Justice Kapunan upholds private respondents and
subsistence fishermen and fish workers in rivers, lakes, intervenors in their claim that all ancestral domains and
bays and lagoons. lands are outside the coverage of public domain; and that
“The President may enter into agreements with these properties—including forests, bodies of water,
foreign-owned corporations involving either technical or minerals and parks found therein—are private and have
financial assistance for large-scale exploration, never been part of the public domain, because they have
development, and utilization of minerals, petroleum, and belonged to the indigenous people’s ancestors since time
other mineral oils according to the general terms and immemorial.
conditions provided by law, based on real contributions I submit, however, that all Filipinos, whether
to the economic growth and general welfare of the indigenous or not, are subject to the Constitution.
country. In such agreements, the State shall promote the Indeed, no one is exempt from its all-encompassing
development and use of local scientific and technical provisions. Unlike the 1935 Charter, which was subject
resources. to “any existing right, grant, lease or concession,” the
1973 and the 1987 Constitutions spoke in absolute
‘The President shall notify the Congress of every terms. Because of the State’s implementation of policies
contract entered into in accordance with this provision, considered to be for the common good, all those
within thirty days from its execution.” concerned have to give up, under certain conditions,
The adoption of the Regalian Doctrine by the Philippine evenvested rights of ownership.
Commonwealth was initially impelled by the desire to In Republic v. Court of Appeals,14 this Court said that
preserve the nation’s wealth in the hands of the Filipinos once minerals are found even in private land, the State
themselves. Nationalism was fervent at the time, and our may intervene to enable it to extract the minerals in the
constitutional framers decided to embody the doctrine exercise of its sovereign prerogative. The land is
in our fundamental law. Charging the State with the converted into mineral land and may not be used by any
conservation of the national patrimony was deemed private person, including the registered owner, for any
necessary for Filipino posterity. The arguments in other purpose that would impede the mining operations.
support of the provision are encapsulated by Aruego as Such owner would be entitled to just compensation for
follows: “[T]he natural resources, particularly the the loss sustained.
mineral resources which constituted a great source of In Atok Big-Wedge Mining Company v. IAC,15 the
wealth, belonged not only to the generation then but also Court clarified that while mining claim holders and
to the succeeding generation and consequently should be patentees have the exclusive right to the possession and
conserved for them.”12 enjoyment of the located claim, their rights are not
absolute or strictly one of ownership. Thus, failure to
Thus, after expressly declaring that all lands of the comply with the requirements of pertinent mining laws
public domain, waters, minerals, all forces of energy and was deemed an abandonment or awaiverof the claim.
other natural resources belonged to the Philippine State,
the Commonwealth absolutely prohibited the alienation Verily, as petitioners undauntedly point out, four
of these natural resources. Their disposition, hundred years of Philippine political history cannot be
exploitation, development and utilization were further set aside or ignored by IPRA, however well-intentioned
restricted only to Filipino citizens and entities that were it may be. The perceived lack of understanding of the
60 percent Filipino-owned. The present Constitution cultural minorities cannot be remedied by conceding the
even goes further by declaring that such activities “shall nation’s resources to their exclusive advantage. They
be under the full control and supervision of the State.” cannot be more privileged simply because they have
Additionally, it enumerates land classifications and chosen to ignore state laws. For having chosen not to be
expressly states that only agricultural lands of the public enfolded by statutes on perfecting land titles, ICCs/IPs
domain shall be alienable. We quote below the relevant cannot now maintain their ownership of lands and
provision:13 domains by insisting on their concept of “native title”
thereto. It would be plain injustice to the majority of it grants them priority rights in harvesting, extracting,
Filipinos who have abided by the law and, consequently, developing or exploiting natural resources within
deserve equal opportunity to enjoy the country’s ancestral domains.
resources. The concerted effort to malign the Regalian
Doctrine as a vestige of the colonial past must fail. Our
Respondent NCIP claims that IPRA does not Constitution vests the ownership of natural resources,
violate the Constitution, because it does not grant not in colonial masters, but in all the Filipino people. As the
ownership of public domains and natural resources to protector of the Constitution, this Court has the sworn duty to
ICCs/IPs. “Rather, it recognizes and mandates respect uphold the tenets of that Constitution—not to dilute,
for the rights of indigenous peoples over their ancestral circumventorcreate exceptions to them.
lands and domains that had never been lands of the Cariño v. InsularGovernment Was Modified by the
public domain.”16 I say, however, that such claim finds
no legal support. Nowhere in the Constitution is there a
Constitution
In this connection, I submit that Cariño v. Insular
provision that exempts such lands and domains from its
Government20 has been modified or superseded by our
coverage. Quite the contrary, it declares that all lands of
the public domain and natural resources “are owned by 1935, 1973 and 1987 Constitutions. Its ratio should be
the State”; and “with the exception of agricultural lands, understood as referring only to a means by which public
agricultural land may be acquired by citizens. I must also
all other natural resources shallnotbe alienated.”
stress that the claim of Petitioner Cariño refers to land
As early as Oh Cho v. Director of Lands,17 the Court ownership only, not to the natural resources underneath
declared as belonging to the public domain all lands not or to the aerial and cosmic space above.
Significantly, in Director of Land Management v. Court of
acquired from the government, either by purchase or by
Appeals,21 a Decision handed down after our three
grant under laws, orders or decrees promulgated by the
Spanish government; or by possessory information Constitutions had taken effect, the Court rejected a
under Act 496 (MortgageLaw). cultural minority member’s registration of land under
CA 141, Section 48 (c).22 The reason was that the
On the other hand, Intervenors Flavier, et
property fell within the Central Cordillera Forest
al.18 differentiate the concept of ownership of ICCs/IPs
from that which is defined in Articles 427 and 428 of the Reserve. This Court quoted with favor the solicitor
Civil Code. They maintain that “[t]here are variations general’s following statements:
“3. The construction given by respondent Court of
among ethnolinguistic groups in the Cordillera, but a fair
Appeals to the particular provision of law involved, as to
synthesis of these refers to 'xxx the tribal right to use the
land or to territorial control xxx, a collective right to include even forest reserves as susceptible to private
freely use the particular territory x x x [in]the concept appropriation, is to unconstitutionally apply such
provision. For, both the 1973 and present Constitutions
oftrusteeship.’”
do not include timber or forest lands as alienable. Thus,
In other words, the “owner” is not an individual. Section 8, Article XIV of 1973 Constitution states that
Rather, it is a tribal community that preserves the Svith the exception of agricultural, industrial or
commercial, residential and resettlement lands of the
property for the common but nonetheless exclusive and
public domain, natural resources shall not be alienated.’
perpetual benefit of its members, without the attributes
of alienation or disposition. This concept, however, still The new Constitution, in its Article XII, Section 2, also
perpetually withdraws such property from the control of the State expressly states that “with the exception of agricultural
lands, all other natural resources shall not be alienated.’”
and from its enjoyment by other citizens of the Republic. The
Just recently, in Gordula v. Court of Appeals,23 the Court
perpetual and exclusive character of private respondents’ claims
simplymakes them repugnant to basic fairness andequality. also stated that “forest land is incapable of registration,
Private respondents and intervenors trace their and its inclusion in a title nullifies that title. To be sure,
the defense of indefeasibility of a certificate of title
“ownership” of ancestral domains and lands to the pre-
issued pursuant to a free patent does not lie against the
Spanish conquest. I should say that, at the time, their
claims to such lands and domains was limited to the state in an action for reversion of the land covered
surfaces thereof since their ancestors were agriculture- thereby when such land is a part of a public forest or of
a forest reservation, the patent covering forest land being
based. This must be the continuing scope of the
void ab initio.”
indigenous groups’ ownership claims: limited to land,
excluding the natural resources found within. RA 8371 Violates the Inalienability ofNatural
In any event, if all that the ICCs/IPs demand is Resources and of Public Domains
preferential use—not ownership—of ancestral domains, The ponencia theorizes that RA 8371 does not grant to
then I have no disagreement. Indeed, consistent with the ICCs/IPs ownership of the natural resources found
Constitution is IPRA’s Section 5719—without the too- within ancestral domains. However, a simple reading of
broad definitions under Section 3 (a) and (b)—insofar as the very wordings of the law belies this statement.
Section 3 (a)24 defines and delineates ancestral private properties.27 The presumption is that “all lands
domains as “all areas generally belonging to ICCs/IPs not appearing to be clearly within private ownership are
comprising lands, inland waters, coastal areas, presumed to belong to the State. Hence, x xx all
and natural resources therein, held under a claim of applicants in land registration proceedings have the
ownership, occupied or possessed by ICCs/IPs, by burden of overcoming the presumption that the land
themselves or through their ancestors, communally or thus sought to be registered forms part of the public
individually since time immemorial, continuously to the domain. Unless the applicant succeeds in showing by
present except when interrupted by war, force majeure or clear and convincing evidence that the property involved
displacement x xx. It shall include ancestral lands, was acquired by him or his ancestors either by
forests, pasture, residential, agricultural, and other lands composition title from the Spanish Government or by
individually owned whether alienable and disposable or possessory information title, or any other means for the
otherwise, hunting grounds x x x bodies of water, mineral proper acquisition of public lands, the property must be
and other natural resources x x x.” (Emphasis ours.) held to be part of the public domain. The applicant must
Clearly, under the above-quoted provision of IPRA, present competent and persuasive proof to substantiate
ancestral domains of ICCs/IPs encompass the natural his claim; he may not rely on general statements, or mere
resources found conclusions of law other than factual evidenceof
therein. And Section 7 guarantees recognition and possession and title.”28
protection of their rightsofownership andpossessionover such
domains. Respondents insist, and the ponencia agrees, that
paragraphs (a) and (b) of Section 3 are merely definitions
The indigenous concept of ownership, as defined and should not be construed independently of the other
under Section 5 of the law, “holds that ancestral domains provisions of the law. But, precisely, a definition is “a
are the ICC’s/IP’s private but community property statement of the meaning of a word or word group.”29 It
which belongs to all generations and therefore cannot be determines or settles the nature of the thing or person
sold, disposed or destroyed.” Simply put, the law defined.30 Thus, after defining a term as encompassing
declares that ancestral domains, including the natural several items, one cannot thereafter say that the same
resources found therein, are owned by ICCs/IPs and term should be interpreted as excluding one or more of
cannot be sold, disposed or destroyed. Not only does it the enumerated items in its
vest ownership, as understood under the Civil Code; it bound by the law. In other words, since RA 8371 defines
adds perpetual exclusivity. This means that while ancestral domains as including the natural resources
ICCs/IPs could own vast ancestral domains, the found therein and further states that ICCs/IPs own
majority of Filipinos who are not indigenous can never these ancestral domains, then it means that ICCs/IPs
own any part thereof. canownnatural resources.
On the other hand, Section 3 (b)25 of IPRA defines In fact, Intervenors Flavier, et al. submit
ancestral lands as referring to ‘lands occupied, possessed that everything above and below these ancestral domains,
and utilized by individuals, families and clans of the with no specific limits, likewise belongs to ICCs/IPs. I
ICCs/IPs since time immemorial x x x, under claims of say that this theory directly contravenes the
individual or traditional group ownership, x x x Constitution. Such outlandish contention further
including, but not limited to, residential lots, rice terraces disregards international law which, by constitutional fiat,
or paddies, private forests, swidden farms and tree lots.” has been adopted as part of the law of the land.31
Section 8 recognizes and protects “the right of No Land Area Limits Are Specified by RA 8371
ownership and possession of ICCs/IPs to their ancestral Under Section 3, Article XII of the Constitution,
lands.” Such ownership need not be by virtue of a Filipino citizens may acquire no more than 12 hectares
certificate of title, but simply by possession since time of alienable public land, whether by purchase,
immemorial. homestead or grant. More than that, but not exceeding
500 hectares, they may hold by lease only.
I believe these statutory provisions directly RA 8371, however, speaks of no area or term limits to
contravene Section 2, Article XII of the Constitution, ancestral lands and domains. In fact, by their mere
more specifically the declaration that the State owns all definitions, they could cover vast tracts of the nation’s
lands of the public domain, minerals and natural territory. The properties under the assailed law cover
resources—none of which, except agricultural lands, can everything held, occupied or possessed “by themselves
be alienated. In several cases, this Court has consistently or through their ancestors, communally or individually
held that non-agricultural land must first be reclassified since time immemorial.” It also includes all “lands which
and converted into alienable or disposable land for may no longer be exclusively occupied by [them] but
agricultural purposes by a positive act of the from which they traditionally had access to for their
government.26 Mere possession or utilization thereof, subsistence and traditional activities, particularly the
however long, does not automatically convert them into
home ranges of ICCs/IPs who are still nomadic and/or concerned. Pursuant to their rights of ownership and
shifting cultivators.” possession, they may develop and manage the natural
Nomadic groups have no fixed area within which resources, benefit from and share in the profits from the
they hunt or forage for food. As soon as they have used allocation and the utilization thereof.38 And they may
up the resources of a certain area, they move to another exercise such right without any time limit, unlike non-
place or go back to one they used to occupy. From year ICCs/IPs who may do so only for a period not
to year, a growing tribe could occupy and use enormous exceeding 25 years, renewable for a like
areas, to which they could claim to have had “traditional period.39Consistent with the Constitution, the rights of
access.” If nomadic ICCs/IPs succeed in acquiring title ICCs/IPs to exploit, develop and utilize natural
to their enlarging ancestral domain or land, several resources must also be limited to such period.
thousands of hectares of land may yet be additionally In addition, ICCs/IPs are given the right to
delineated as their private property. negotiate directly the terms and conditions for the
exploration of natural resources,40 a right vested by the
Similarly, the Bangsa Moro people’s claim to their Constitution only in the State. Congress, through IPRA,
ancestral land is not based on compounded or has in effect abdicated in favor of a minority group the
consolidated title, but “on a collective stake to the right State’s power of ownership and full control over a
to claim what their forefathers secured for them when substantial part of the national patrimony, in
they first set foot on our country.”32 They trace their contravention of our most fundamental law.
right to occupy what they deem to be their ancestral land I make clear, however, that to the extent that
way back to their ancient sultans and datus, who had ICCs/IPs may undertake small-scale utilization of
settled in many islands that have become part of natural resources and cooperative fish farming, I
Mindanao. This long history of occupation is the basisof absolutely have no objection. These undertakings are
their claim to their ancestral lands.33 certainly allowed under the third paragraph of Section 2,
Article XII of the Constitution.
Already, as of June 1998, over 2.5 million hectares Having already disposed of the two major
have been claimed by various ICCs/IPs as ancestral constitutional dilemmas wrought by RA 8371—(1)
domains; and over 10 thousand hectares, as ancestral ownership of ancestral lands and domains and the
lands.34 Based on ethnographic surveys, the solicitor natural resources therein; and (2) the ICCs/IPs’ control
general estimates that ancestral domains cover 80 of the exploration, development and utilization of such
percent of our mineral resources and between 8 and 10 resources—I believe I should no longer tackle the
million of the 30 million hectares of land in the following collateral issues petitioners have brought up:
country.35 This means that four fifths of its natural resources and
one third of the country’s land will be concentrated among 12 1. 1.Whether the inclusion of private lands within
million Filipinos constituting 110 ICCs,36while over 60 million the coverage of ancestral domains amounts to
other Filipinos constituting the overwhelming majority will have to undue deprivation of private property
share the remaining. These figures indicate a violation of 2. 2.Whether ICCs/IPs may regulate the
the constitutional principle of a “more equitable entry/exit of migrants
distribution of opportunities, income, and wealth” 3. 3.Whether ancestral domains are exempt from
among Filipinos. real property taxes, special levies and other
forms of exaction
RA 8371 Abdicates the StateDuty to Take Full 4. 4.Whether customary laws and traditions of
ICCs/IPs should first be applied in the
Control and Supervision ofNatural Resources settlements of disputes over their rights and
Section 2, Article XII of the Constitution, further claims
provides that “[t]he exploration, development, and 5. 5.Whether the composition and the jurisdiction
utilization of natural resources shall be under the full of the National Commission of Indigenous
control and supervision of the State.” The State may (1) Peoples (NCIP) violate the due process and
directly undertake such activities; or (2) enter into co- equal protection clauses
production, joint yenture or production-sharing 6. 6.Whether members of the ICCs/IPs may be
agreements with Filipino citizens or entities, 60 percent recruited into the armed forces against their
of whose capital is owned by Filipinos.37 Such will
agreements, however, shall not exceed 25 years,
renewable for the same period and under terms and
conditionsas may be providedby law. I believe that the first three of the above collateral issues
But again, RA 8371 relinquishes this constitutional have been rendered academic or, at least, no longer of
power of full control in favor of ICCs/IPs, insofar as “transcendental importance,” in view of my contention
natural resources found within their territories are that the two major IPRA propositions are based on
unconstitutional premises. On the other hand, I think
that in the case of the last three, it is best to await specific
cases filed by those whose rights may have been injured
by specific provisions of RA 8371.

Epilogue
Section 5,Article XII ofthe Constitution, provides:
“SEC. 5. The State, subject to the provisions of this
Constitution and national development policies and
programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their
economic, social, andcultural well being.
“The Congress may provide for the applicability of
customary laws governing properly rights and relations
in determining the ownership and extent of ancestral
domain.”
Clearly, there are two parameters that must be observed
in the protection of the rights of ICCs/IPs: (1) the
provisions of the 1987 Constitution and(2)national
development policies andprograms.
Indigenous peoples may have long been
marginalized in Philippine politics and society. This does Notes.—Unlike the 1935 Constitution, the 1973 Constitution did
not, however, give Congress any license to accord them not expressly qualify the application of the regalian doctrine as being
rights that the Constitution withholds from the rest of subject to any right granted before the effectivity of the 1935
the Filipino people. I would concede giving Constitution or the 1973 Constitution for that matter but the
conditional application of the regalian doctrine could be found in
them priority in the use, the enjoyment and the Presidential Decree No. 463 (1974). (Atok Big-Wedge Mining Company vs.
preservation of their ancestral lands and domains. 41 But Intermediate Appellate Court, 261 SCRA 528 [1996])
to grant perpetualownership and control of the nation’s Before the Treaty of Paris on April 11, 1899, our lands, whether
substantial wealth to them, to the exclusion of other agricultural, mineral or forest were under the exclusive patrimony and
dominion of the Spanish Crown—private ownership of land could
Filipino citizens who have chosen to live and abide by only be acquired through royal concessions. (Palomo vs. Court of
our previous and present Constitutions, would be not Appeals, 266 SCRA 392 [1997])
only unjust but also subversive of therule of law. A province may not invoke the Regalian doctrine to extend the
In giving ICCs/IPs rights in derogation of our coverage of its ordinance to quarry resources extracted from private
lands, for taxes, being burdens, are not to be presumed beyond what
fundamental law, Congress is effectively mandating the applicable statute expressly and clearly declares, tax statutes being
“reverse discrimination.” In seeking to improve their lot, construed strictissimi juris against the government. (Province of Bulacan vs.
it would be doing so at the expense of the majority of Court of Appeals, 299 SCRA 442 [1998])
the Filipino people. Such short-sighted and misplaced
generosity will spread the roots of discontent and, in the ——o0o——
long term, fan the fires of turmoil to a conflagration of
national proportions.
Peace cannot be attained by brazenly and
permanently depriving the many in order to coddle the
few, however disadvantaged they may have been.
Neither can a just society be approximated by maiming
the healthy to place them at par with the injured. Nor
can the nation survive by enclaving its wealth for the
exclusive benefit of favored minorities.
Rather, the law must help the powerless by enabling them to
take advantage of opportunities and privileges that are open to all
and by preventing the powerful from exploiting and oppressing
them. This is the essence of social justice—empowering and
enabling the poor to be able to compete with the rich and, thus,
equally enjoy the blessings of prosperity, freedom and dignity.
WHEREFORE, I vote to partially GRANT the
Petition and to DECLARE as
UNCONSTITUTIONAL Sections 3(a) and (b), 5, 6,
7(a) and (b), 8 and related provisions of RA 8371.
Petition dismissed.