LEONARDA SAWAY, JIMMY UGYUB, SALVADOR TIONGSON, VENANCIO

APANG, MADION MALID, SUKIM MALID, NENENG MALID,

MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO
MALID, MARIO MANGCAL, FELAY DIAMILING, SALOME P. SARZA, FELIPE
P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA
MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA, RENATO
T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA,
ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO,
MINORS MARICEL MALID, represented by her father CORNELIO MALID,
EN BANC MARCELINO M. LADRA, represented by her father MONICO D. LADRA,
JENNYLYN MALID, represented by her father TONY MALID, ARIEL M.
G.R. No. 135385               December 6, 2000 EVANGELISTA, represented by her mother LINAY BALBUENA, EDWARD
M. EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL
ISAGANI CRUZ and CESAR EUROPA, petitioners, FARMER'S ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and GREEN
vs. FORUM-WESTERN VISAYAS, intervenors.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, COMMISSION ON HUMAN RIGHTS, intervenor.
SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN and IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE
COMMISSIONERS OF THE NATIONAL COMMISSION ON INDIGENOUS CONSERVATION OF NATURAL RESOURCES, INC., intervenor.
PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI RESOLUTION
ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO WANDAG, EVELYN
DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN, PER CURIAM:
MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE
SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG- Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and
ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO mandamus as citizens and taxpayers, assailing the constitutionality of certain
SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the
RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO, Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and
TIMUAY EDWIN B. ENDING, DATU SAHAMPONG MALANAW VI, DATU BEN Regulations (Implementing Rules).
PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-
MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU
In its resolution of September 29, 1998, the Court required respondents to
MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN SAWAY,
comment. In compliance, respondents Chairperson and Commissioners of the
1 

VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGANG, TERESA

National Commission on Indigenous Peoples (NCIP), the government agency
GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE G.
created under the IPRA to implement its provisions, filed on October 13, 1998
PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-
their Comment to the Petition, in which they defend the constitutionality of the
VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT,
IPRA and pray that the petition be dismissed for lack of merit.
ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO,
CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ,
RODOLFO C. AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA T. On October 19, 1998, respondents Secretary of the Department of Environment
DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, and Natural Resources (DENR) and Secretary of the Department of Budget and
OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO Management (DBM) filed through the Solicitor General a consolidated
ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE Comment. The Solicitor General is of the view that the IPRA is partly
SATURNO, ROMEO A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO unconstitutional on the ground that it grants ownership over natural resources to
S. LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, indigenous peoples and prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, "(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition
one of the authors of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 of ancestral domains and ancestral lands;
Constitutional Commission, and the leaders and members of 112 groups of
indigenous peoples (Flavier, et. al), filed their Motion for Leave to Intervene. "(4) Section 7 which recognizes and enumerates the rights of the indigenous
They join the NCIP in defending the constitutionality of IPRA and praying for the peoples over the ancestral domains;
dismissal of the petition.
(5) Section 8 which recognizes and enumerates the rights of the indigenous
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a peoples over the ancestral lands;
Motion to Intervene and/or to Appear as Amicus Curiae. The CHR asserts that
IPRA is an expression of the principle of parens patriae and that the State has "(6) Section 57 which provides for priority rights of the indigenous peoples in the
the responsibility to protect and guarantee the rights of those who are at a harvesting, extraction, development or exploration of minerals and other natural
serious disadvantage like indigenous peoples. For this reason it prays that the resources within the areas claimed to be their ancestral domains, and the right
petition be dismissed. to enter into agreements with nonindigenous peoples for the development and
utilization of natural resources therein for a period not exceeding 25 years,
On March 23, 1999, another group, composed of the Ikalahan Indigenous renewable for not more than 25 years; and
People and the Haribon Foundation for the Conservation of Natural Resources,
Inc. (Haribon, et al.), filed a motion to Intervene with attached Comment-in- "(7) Section 58 which gives the indigenous peoples the responsibility to
Intervention. They agree with the NCIP and Flavier, et al. that IPRA is consistent maintain, develop, protect and conserve the ancestral domains and portions
with the Constitution and pray that the petition for prohibition and mandamus be thereof which are found to be necessary for critical watersheds, mangroves,
dismissed. wildlife sanctuaries, wilderness, protected areas, forest cover or reforestation."
2

The motions for intervention of the aforesaid groups and organizations were Petitioners also content that, by providing for an all-encompassing definition of
granted. "ancestral domains" and "ancestral lands" which might even include private
lands found within said areas, Sections 3(a) and 3(b) violate the rights of private
Oral arguments were heard on April 13, 1999. Thereafter, the parties and landowners. 3

intervenors filed their respective memoranda in which they reiterate the

arguments adduced in their earlier pleadings and during the hearing. In addition, petitioners question the provisions of the IPRA defining the powers
and jurisdiction of the NCIP and making customary law applicable to the
Petitioners assail the constitutionality of the following provisions of the IPRA and settlement of disputes involving ancestral domains and ancestral lands on the
its Implementing Rules on the ground that they amount to an unlawful ground that these provisions violate the due process clause of the Constitution. 4

deprivation of the State’s ownership over lands of the public domain as well as
minerals and other natural resources therein, in violation of the regalian doctrine These provisions are:
embodied in Section 2, Article XII of the Constitution:
"(1) sections 51 to 53 and 59 which detail the process of delineation and
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, recognition of ancestral domains and which vest on the NCIP the sole authority
and Section 3(b) which, in turn, defines ancestral lands; to delineate ancestral domains and ancestral lands;

"(2) Section 5, in relation to section 3(a), which provides that ancestral domains "(2) Section 52[i] which provides that upon certification by the NCIP that a
including inalienable public lands, bodies of water, mineral and other resources particular area is an ancestral domain and upon notification to the following
found within ancestral domains are private but community property of the officials, namely, the Secretary of Environment and Natural Resources,
indigenous peoples; Secretary of Interior and Local Governments, Secretary of Justice and
Commissioner of the National Development Corporation, the jurisdiction of said "(5) The issuance of a writ of mandamus commanding the Secretary of
officials over said area terminates; Environment and Natural Resources to comply with his duty of carrying out the
State’s constitutional mandate to control and supervise the exploration,
"(3) Section 63 which provides the customary law, traditions and practices of development, utilization and conservation of Philippine natural resources."7

indigenous peoples shall be applied first with respect to property rights, claims of
ownership, hereditary succession and settlement of land disputes, and that any After due deliberation on the petition, the members of the Court voted as follows:
doubt or ambiguity in the interpretation thereof shall be resolved in favor of the
indigenous peoples; Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which
the Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join,
"(4) Section 65 which states that customary laws and practices shall be used to sustaining the validity of the challenged provisions of R.A. 8371. Justice Puno
resolve disputes involving indigenous peoples; and also filed a separate opinion sustaining all challenged provisions of the law with
the exception of Section 1, Part II, Rule III of NCIP Administrative Order No. 1,
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and series of 1998, the Rules and Regulations Implementing the IPRA, and Section
disputes involving rights of the indigenous peoples." 5 57 of the IPRA which he contends should be interpreted as dealing with the
large-scale exploitation of natural resources and should be read in conjunction
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP with Section 2, Article XII of the 1987 Constitution. On the other hand, Justice
Administrative Order No. 1, series of 1998, which provides that "the Mendoza voted to dismiss the petition solely on the ground that it does not raise
administrative relationship of the NCIP to the Office of the President is a justiciable controversy and petitioners do not have standing to question the
characterized as a lateral but autonomous relationship for purposes of policy constitutionality of R.A. 8371.
and program coordination." They contend that said Rule infringes upon the
President’s power of control over executive departments under Section 17, Seven (7) other members of the Court voted to grant the petition. Justice
Article VII of the Constitution.
6 Panganiban filed a separate opinion expressing the view that Sections 3 (a)(b),
5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional. He
Petitioners pray for the following: reserves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the
law, which he believes must await the filing of specific cases by those whose
rights may have been violated by the IPRA. Justice Vitug also filed a separate
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and
opinion expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are
other related provisions of R.A. 8371 are unconstitutional and invalid;
unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon
join in the separate opinions of Justices Panganiban and Vitug.
"(2) The issuance of a writ of prohibition directing the Chairperson and
Commissioners of the NCIP to cease and desist from implementing the assailed
As the votes were equally divided (7 to 7) and the necessary majority was not
provisions of R.A. 8371 and its Implementing Rules;
obtained, the case was redeliberated upon. However, after redeliberation, the
voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the
"(3) The issuance of a writ of prohibition directing the Secretary of the Rules of Civil Procedure, the petition is DISMISSED.
Department of Environment and Natural Resources to cease and desist from
implementing Department of Environment and Natural Resources Circular No. 2,
Attached hereto and made integral parts thereof are the separate opinions of
series of 1998;
Justices Puno, Vitug, Kapunan, Mendoza, and Panganiban.
"(4) The issuance of a writ of prohibition directing the Secretary of Budget and
SO ORDERED.
Management to cease and desist from disbursing public funds for the
implementation of the assailed provisions of R.A. 8371; and
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion

Footnotes

Rollo, p. 114.
1 

Petition, Rollo, pp. 16-23.

2 

Id. at 23-25.
3 

4 
Section 1, Article III of the Constitution states: "No person shall be deprived of
life, liberty or property without due process of law, nor shall any person be
denied the equal protection of the laws."

Rollo, pp. 25-27.

5 

Id. at 27-28.
6 

Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.
7 

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

PUNO, J.:
PRECIS A. Indigenous Peoples

A classic essay on the utility of history was written in 1874 by Friedrich 1. Indigenous Peoples: Their History
Nietzsche entitled "On the Uses and Disadvantages of History for Life."
Expounding on Nietzsche's essay, Judge Richard Posner 1 wrote:2 2. Their Concept of Land

"Law is the most historically oriented, or if you like the most backward-looking, III. The IPRA is a Novel Piece of Legislation.
the most 'past-dependent,' of the professions. It venerates tradition, precedent,
pedigree, ritual, custom, ancient practices, ancient texts, archaic terminology, A. Legislative History
maturity, wisdom, seniority, gerontocracy, and interpretation conceived of as a
method of recovering history. It is suspicious of innovation, discontinuities,
IV. The Provisions of the IPRA Do Not Contravene the Constitution.
'paradigm shifts,' and the energy and brashness of youth. These ingrained
attitudes are obstacles to anyone who wants to re-orient law in a more
pragmatic direction. But, by the same token, pragmatic jurisprudence must A. Ancestral domains and ancestral lands are the private property of indigenous
come to terms with history." peoples and do not constitute part of the land of the public domain.

When Congress enacted the Indigenous Peoples Rights Act (IPRA), it 1. The right to ancestral domains and ancestral lands: how acquired
introduced radical concepts into the Philippine legal system which appear to
collide with settled constitutional and jural precepts on state ownership of land 2. The concept of native title
and other natural resources. The sense and subtleties of this law cannot be
appreciated without considering its distinct sociology and the labyrinths of its (a) Cariño v. Insular Government
history. This Opinion attempts to interpret IPRA by discovering its soul shrouded
by the mist of our history. After all, the IPRA was enacted by Congress not only (b) Indian Title to land
to fulfill the constitutional mandate of protecting the indigenous cultural
communities' right to their ancestral land but more importantly, to correct a (c) Why the Cariño doctrine is unique
grave historical injustice to our indigenous people.
3. The option of securing a torrens title to the ancestral land
This Opinion discusses the following:
B. The right of ownership and possession by the ICCs/IPs to their ancestral
I. The Development of the Regalian Doctrine in the Philippine Legal System. domains is a limited form of ownership and does not include the right to alienate
the same.
A. The Laws of the Indies
1. The indigenous concept of ownership and customary law
B. Valenton v. Murciano
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine
C. The Public Land Acts and the Torrens System enshrined in Section 2, Article XII of the 1987 Constitution.

D. The Philippine Constitutions 1. The rights of ICCs/IPs over their ancestral domains and lands

II. The Indigenous Peoples Rights Act (IPRA).

2. The right of ICCs/IPs to develop lands and natural resources within the taking into consideration not only their present condition, but also their future
ancestral domains does not deprive the State of ownership over the natural and their probable increase, and after distributing to the natives what may be
resources, control and supervision in their development and exploitation. necessary for tillage and pasturage, confirming them in what they now have and
giving them more if necessary, all the rest of said lands may remain free and
(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the unencumbered for us to dispose of as we may wish.
parameters of Section 7(a) of the law on ownership of ancestral domains and
is ultra vires. We therefore order and command that all viceroys and presidents of pretorial
courts designate at such time as shall to them seem most expedient, a suitable
(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA is period within which all possessors of tracts, farms, plantations, and estates shall
allowed under Paragraph 3, Section 2, Article XII of the 1987 Consitution. exhibit to them and to the court officers appointed by them for this purpose, their
title deeds thereto. And those who are in possession by virtue of proper deeds
(c) The large-scale utilization of natural resources in Section 57 of the IPRA may and receipts, or by virtue of just prescriptive right shall be protected, and all the
be harmonized with Paragraphs 1 and 4, Section 2, Article XII of the 1987 rest shall be restored to us to be disposed of at our will." 4
Constitution.
The Philippines passed to Spain by virtue of "discovery" and conquest.
V. The IPRA is a Recognition of Our Active Participation in the International Consequently, all lands became the exclusive patrimony and dominion of the
Indigenous Movement. Spanish Crown. The Spanish Government took charge of distributing the lands
by issuing royal grants and concessions to Spaniards, both military and
civilian.5 Private land titles could only be acquired from the government either by
DISCUSSION
purchase or by the various modes of land grant from the Crown. 6
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage
LEGAL SYSTEM.
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
A. The Laws of the Indies register and tax lands pursuant to the Royal Decree of 1880. The Royal Decree
of 1894, or the "Maura Law," was partly an amendment of the Mortgage Law as
The capacity of the State to own or acquire property is the state's power well as the Laws of the Indies, as already amended by previous orders and
of dominium.3 This was the foundation for the early Spanish decrees embracing decrees.8 This was the last Spanish land law promulgated in the Philippines. It
the feudal theory of jura regalia. The "Regalian Doctrine" or jura regalia is a required the "adjustment" or registration of all agricultural lands, otherwise the
Western legal concept that was first introduced by the Spaniards into the lands shall revert to the state.
country through the Laws of the Indies and the Royal Cedulas. The Laws of
the Indies, i.e., more specifically, Law 14, Title 12, Book 4 of the Novisima Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to
Recopilacion de Leyes de las Indias, set the policy of the Spanish Crown with the government of the United States all rights, interests and claims over the
respect to the Philippine Islands in the following manner: national territory of the Philippine Islands. In 1903, the United States colonial
government, through the Philippine Commission, passed Act No. 926, the first
"We, having acquired full sovereignty over the Indies, and all lands, territories, Public Land Act.
and possessions not heretofore ceded away by our royal predecessors, or by
us, or in our name, still pertaining to the royal crown and patrimony, it is our will B. Valenton v. Murciano
that all lands which are held without proper and true deeds of grant be restored
to us as they belong to us, in order that after reserving before all what to us or to
In 1904, under the American regime, this Court decided the case of Valenton v.
our viceroys, audiencias, and governors may seem necessary for public
Murciano.9
squares, ways, pastures, and commons in those places which are peopled,
Valenton resolved the question of which is the better basis for ownership of The preamble stated that all those lands which had not been granted by Philip,
land: long-time occupation or paper title. Plaintiffs had entered into peaceful or in his name, or by the kings who preceded him, belonged to the Crown. 13 For
occupation of the subject land in 1860. Defendant's predecessor-in-interest, on those lands granted by the king, the decree provided for a system of assignment
the other hand, purchased the land from the provincial treasurer of Tarlac in of such lands. It also ordered that all possessors of agricultural land should
1892. The lower court ruled against the plaintiffs on the ground that they had lost exhibit their title deed, otherwise, the land would be restored to the Crown. 14
all rights to the land by not objecting to the administrative sale. Plaintiffs
appealed the judgment, asserting that their 30-year adverse possession, as an The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it
extraordinary period of prescription in the Partidas and the Civil Code, had ordered the Crown's principal subdelegate to issue a general order directing the
given them title to the land as against everyone, including the State; and that the publication of the Crown's instructions:
State, not owning the land, could not validly transmit it.
"x x x to the end that any and all persons who, since the year 1700, and up to
The Court, speaking through Justice Willard, decided the case on the basis of the date of the promulgation and publication of said order, shall have occupied
"those special laws which from earliest time have regulated the disposition of the royal lands, whether or not x x x cultivated or tenanted, may x x x appear and
public lands in the colonies."10 The question posed by the Court was: "Did these exhibit to said subdelegates the titles and patents by virtue of which said lands
special laws recognize any right of prescription as against the State as to these are occupied. x x x. Said subdelegates will at the same time warn the parties
lands; and if so, to what extent was it recognized?" interested that in case of their failure to present their title deeds within the term
designated, without a just and valid reason therefor, they will be deprived of and
Prior to 1880, the Court said, there were no laws specifically providing for the evicted from their lands, and they will be granted to others." 15
disposition of land in the Philippines. However, it was understood that in the
absence of any special law to govern a specific colony, the Laws of the Indies On June 25, 1880, the Crown adopted regulations for the adjustment of lands
would be followed. Indeed, in the Royal Order of July 5, 1862, it was decreed "wrongfully occupied" by private individuals in the Philippine
that until regulations on the subject could be prepared, the authorities of the Islands. Valenton construed these regulations together with contemporaneous
Philippine Islands should follow strictly the Laws of the Indies, the Ordenanza of legislative and executive interpretations of the law, and concluded that plaintiffs'
the Intendentes of 1786, and the Royal Cedula of 1754.11 case fared no better under the 1880 decree and other laws which followed it,
than it did under the earlier ones. Thus as a general doctrine, the Court stated:
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de
Leyes de las Indias, the court interpreted it as follows: "While the State has always recognized the right of the occupant to a deed if he
proves a possession for a sufficient length of time, yet it has always insisted
"In the preamble of this law there is, as is seen, a distinct statement that all that he must make that proof before the proper administrative officers, and
those lands belong to the Crown which have not been granted by Philip, or in his obtain from them his deed, and until he did that the State remained the
name, or by the kings who preceded him. This statement excludes the idea absolute owner."16
that there might be lands not so granted, that did not belong to the king. It
excludes the idea that the king was not still the owner of all ungranted In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no
lands, because some private person had been in the adverse occupation of law in force in these Islands by which the plaintiffs could obtain the ownership of
them. By the mandatory part of the law all the occupants of the public lands are these lands by prescription, without any action by the State." 17 Valenton had no
required to produce before the authorities named, and within a time to be fixed rights other than those which accrued to mere possession. Murciano, on the
by them, their title papers. And those who had good title or showed prescription other hand, was deemed to be the owner of the land by virtue of the grant by the
were to be protected in their holdings. It is apparent that it was not the intention provincial secretary. In effect, Valenton upheld the Spanish concept of state
of the law that mere possession for a length of time should make the possessors ownership of public land.
the owners of the land possessed by them without any action on the part of the
authorities."12 As a fitting observation, the Court added that "[t]he policy pursued by the
Spanish Government from earliest times, requiring settlers on the public
lands to obtain title deeds therefor from the State, has been continued by owner of the property described therein, subject to such liens and
the American Government in Act No. 926."18 encumbrances as thereon noted or the law warrants or reserves. 26 The
certificate of title is indefeasible and imprescriptible and all claims to the parcel
C. The Public Land Acts and the Torrens System of land are quieted upon issuance of said certificate. This system highly
facilitates land conveyance and negotiation. 27
Act No. 926, the first Public Land Act, was passed in pursuance of the
provisions of the the Philippine Bill of 1902. The law governed the disposition of D. The Philippine Constitutions
lands of the public domain. It prescribed rules and regulations for the
homesteading, selling, and leasing of portions of the public domain of the The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed
Philippine Islands, and prescribed the terms and conditions to enable persons to and dominating objectives of the 1935 Constitutional Convention was the
perfect their titles to public lands in the Islands. It also provided for the "issuance nationalization and conservation of the natural resources of the country. 28 There
of patents to certain native settlers upon public lands," for the establishment of was an overwhelming sentiment in the Convention in favor of the principle
town sites and sale of lots therein, for the completion of imperfect titles, and for of state ownership of natural resources and the adoption of the Regalian
the cancellation or confirmation of Spanish concessions and grants in the doctrine.29 State ownership of natural resources was seen as a necessary
Islands." In short, the Public Land Act operated on the assumption that title to starting point to secure recognition of the state's power to control their
public lands in the Philippine Islands remained in the government; 19 and that the disposition, exploitation, development, or utilization. 30 The delegates to the
government's title to public land sprung from the Treaty of Paris and other Constitutional Convention very well knew that the concept of State ownership of
subsequent treaties between Spain and the United States. 20 The term "public land and natural resources was introduced by the Spaniards, however, they
land" referred to all lands of the public domain whose title still remained in the were not certain whether it was continued and applied by the Americans. To
government and are thrown open to private appropriation and settlement, 21 and remove all doubts, the Convention approved the provision in the Constitution
excluded the patrimonial property of the government and the friar lands. 22 affirming the Regalian doctrine.31

Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and
Act. This new law was passed under the Jones Law. It was more Utilization of Natural Resources," reads as follows:
comprehensive in scope but limited the exploitation of agricultural lands to
Filipinos and Americans and citizens of other countries which gave Filipinos the "Sec. 1. All agricultural, timber, and mineral lands of the public domain,
same privileges.23 After the passage of the 1935 Constitution, Act 2874 was waters, minerals, coal, petroleum, and other mineral oils, all forces of
amended in 1936 by Commonwealth Act No. 141. Commonwealth Act No. 141 potential energy, and other natural resources of the Philippines belong to
remains the present Public Land Law and it is essentially the same as Act 2874. the State, and their disposition, exploitation, development, or utilization
The main difference between the two relates to the transitory provisions on the shall be limited to citizens of the Philippines, or to corporations or
rights of American citizens and corporations during the Commonwealth period at associations at least sixty per centum of the capital of which is owned by
par with Filipino citizens and corporations.24 such citizens, subject to any existing right, grant, lease, or concession at
the time of the inauguration of the Government established under this
Grants of public land were brought under the operation of the Torrens Constitution. Natural resources, with the exception of public agricultural
system under Act 496, or the Land Registration Law of 1903. Enacted by the land, shall not be alienated, and no license, concession, or lease for the
Philippine Commission, Act 496 placed all public and private lands in the exploitation, development, or utilization of any of the natural resources shall be
Philippines under the Torrens system. The law is said to be almost a verbatim granted for a period exceeding twenty-five years, except as to water rights for
copy of the Massachussetts Land Registration Act of 1898, 25 which, in turn, irrigation, water supply, fisheries, or industrial uses other than the development
followed the principles and procedure of the Torrens system of registration of water power, in which cases beneficial use may be the measure and the limit
formulated by Sir Robert Torrens who patterned it after the Merchant Shipping of the grant."
Acts in South Australia. The Torrens system requires that the government issue
an official certificate of title attesting to the fact that the person named is the
The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote
on the "National Economy and the Patrimony of the Nation," to wit: the Rights of Indigenous Cultural Communities/ Indigenous Peoples, Creating a
National Commission on Indigenous Peoples, Establishing Implementing
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is
and other mineral oils, all forces of potential energy, fisheries, wildlife, and simply known as "The Indigenous Peoples Rights Act of 1997" or the
other natural resources of the Philippines belong to the State. With the IPRA.
exception of agricultural, industrial or commercial, residential, and
resettlement lands of the public domain, natural resources shall not be The IPRA recognizes the existence of the indigenous cultural communities
alienated, and no license, concession, or lease for the exploration, or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It
development, exploitation, or utilization of any of the natural resources grants these people the ownership and possession of their ancestral
shall be granted for a period exceeding twenty-five years, renewable for domains and ancestral lands, and defines the extent of these lands and
not more than twenty-five years, except as to water rights for irrigation, water domains. The ownership given is the indigenous concept of ownership
supply, fisheries, or industrial uses other than the development of water power, under customary law which traces its origin to native title.
in which cases beneficial use may be the measure and the limit of the grant."
Other rights are also granted the ICCs/IPs, and these are:
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article
XII on "National Economy and Patrimony," to wit: - the right to develop lands and natural resources;

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, - the right to stay in the territories;
and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned by - the right in case of displacement;
the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development and
- the right to safe and clean air and water;
utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities
or it may enter into co-production, joint venture, or production-sharing - the right to claim parts of reservations;
agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens. Such - the right to resolve conflict;32
agreements may be for a period not exceeding twenty-five years, renewable for
not more than twenty-five years, and under such terms and conditions as may - the right to ancestral lands which include
be provided by law. In cases of water rights for irrigation, water supply, fisheries,
or industrial uses other than the development of water power, beneficial use a. the right to transfer land/property to/among members of the same ICCs/IPs,
may be the measure and limit of the grant. subject to customary laws and traditions of the community concerned;

x x x." b. the right to redemption for a period not exceeding 15 years from date of
transfer, if the transfer is to a non-member of the ICC/IP and is tainted by
Simply stated, all lands of the public domain as well as all natural vitiated consent of the ICC/IP, or if the transfer is for an unconscionable
resources enumerated therein, whether on public or private land, belong to the consideration.33
State. It is this concept of State ownership that petitioners claim is being
violated by the IPRA. Within their ancestral domains and ancestral lands, the ICCs/IPs are given the
right to self-governance and empowerment, 34 social justice and human
II. THE INDIGENOUS PEOPLES RIGHTS ACT. rights,35 the right to preserve and protect their culture, traditions, institutions and
community intellectual rights, and the right to develop their own sciences and distinctive cultural traits, or who have, through resistance to political, social and
technologies.36 cultural inroads of colonization, non-indigenous religions and cultures, became
historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise
To carry out the policies of the Act, the law created the National Commission on include peoples who are regarded as indigenous on account of their descent
Indigenous Peoples (NCIP). The NCIP is an independent agency under the from the populations which inhabited the country, at the time of conquest or
Office of the President and is composed of seven (7) Commissioners belonging colonization, or at the time of inroads of non-indigenous religions and cultures,
to ICCs/IPs from each of the ethnographic areas- Region I and the Cordilleras; or the establishment of present state boundaries, who retain some or all of their
Region II; the rest of Luzon; Island groups including Mindoro, Palawan, own social, economic, cultural and political institutions, but who may have been
Romblon, Panay and the rest of the Visayas; Northern and Western Mindanao; displaced from their traditional domains or who may have resettled outside their
Southern and Eastern Mindanao; and Central Mindanao. 37 The NCIP took over ancestral domains."
the functions of the Office for Northern Cultural Communities and the Office for
Southern Cultural Communities created by former President Corazon Aquino Indigenous Cultural Communities or Indigenous Peoples refer to a group
which were merged under a revitalized structure.38 of people or homogeneous societies who have continuously lived as an
organized community on communally bounded and defined
Disputes involving ICCs/IPs are to be resolved under customary laws and territory. These groups of people have actually occupied, possessed and
practices. When still unresolved, the matter may be brought to the NCIP, which utilized their territories under claim of ownership since time immemorial. They
is granted quasi-judicial powers. 39 The NCIP's decisions may be appealed to the share common bonds of language, customs, traditions and other distinctive
Court of Appeals by a petition for review. cultural traits, or, they, by their resistance to political, social and cultural inroads
of colonization, non-indigenous religions and cultures, became historically
Any person who violates any of the provisions of the Act such as, but not limited differentiated from the Filipino majority. ICCs/IPs also include descendants of
to, unauthorized and/or unlawful intrusion upon ancestral lands and domains ICCs/IPs who inhabited the country at the time of conquest or colonization, who
shall be punished in accordance with customary laws or imprisoned from 9 retain some or all of their own social, economic, cultural and political institutions
months to 12 years and/or fined from ₱100,000.00 to ₱500,000.00 and obliged but who may have been displaced from their traditional territories or who may
to pay damages.40 have resettled outside their ancestral domains.

A. Indigenous Peoples 1. Indigenous Peoples: Their History

The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Presently, Philippine indigenous peoples inhabit the interiors and mountains of
Cultural Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs" Luzon, Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu
is used in the 1987 Constitution while that of "IPs" is the contemporary group of islands. They are composed of 110 tribes and are as follows:
international language in the International Labor Organization (ILO) Convention
16941 and the United Nations (UN) Draft Declaration on the Rights of Indigenous 1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or
Peoples.42 Itneg, Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos
Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and
ICCs/IPs are defined by the IPRA as: Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan
of Batanes, Aeta of Cagayan, Quirino and Isabela.
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a
group of people or homogeneous societies identified by self-ascription and 2. In Region III- Aetas.
ascription by others, who have continuously lived as organized community on
communally bounded and defined territory, and who have, under claims of 3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal,
ownership since time immemorial, occupied, possessed and utilized such Quezon; Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of
territories, sharing common bonds of language, customs, traditions and other
Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro; Cuyonon, the Chinese and Indian civilizations in the third or fourth millenium B.C.
Palawanon, Tagbanua and Tao't bato of Palawan. augmented these ethnic strains. Chinese economic and socio-cultural influences
came by way of Chinese porcelain, silk and traders. Indian influence found their
4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, way into the religious-cultural aspect of pre-colonial society. 45
Isarog, and Kabihug of Camarines Norte; Agta, and Mayon of Camarines Sur;
Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and Camarines The ancient Filipinos settled beside bodies of water. Hunting and food
Sur. gathering became supplementary activities as reliance on them was reduced by
fishing and the cultivation of the soil.46 From the hinterland, coastal, and riverine
5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat communities, our ancestors evolved an essentially homogeneous culture, a
of Negros Occidental; the Corolano and Sulod. basically common way of life where nature was a primary factor. Community
life throughout the archipelago was influenced by, and responded to, common
6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol. ecology. The generally benign tropical climate and the largely uniform flora and
fauna favored similarities, not differences. 47 Life was essentially subsistence but
not harsh.48
7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga
del Sur; the Kalibugan of Basilan, the Samal, Subanon and Yakat.
The early Filipinos had a culture that was basically Malayan in structure and
form. They had languages that traced their origin to the Austronesian parent-
8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the
stock and used them not only as media of daily communication but also as
Banwaon, Bukidnon, Matigsalog, Talaanding of Bukidnon; the Camiguin of
vehicles for the expression of their literary moods. 49 They fashioned concepts
Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur, Bukidnon
and beliefs about the world that they could not see, but which they sensed to be
and Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental
part of their lives.50 They had their own religion and religious beliefs. They
and and Misamis Occidental, the Manobo of the Agusan provinces, and the
believed in the immortality of the soul and life after death. Their rituals were
Umayamnon of Agusan and Bukidnon.
based on beliefs in a ranking deity whom they called Bathalang Maykapal, and a
host of other deities, in the environmental spirits and in soul spirits. The early
9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of Filipinos adored the sun, the moon, the animals and birds, for they seemed to
the Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli consider the objects of Nature as something to be respected. They venerated
and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of almost any object that was close to their daily life, indicating the importance of
the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato; the the relationship between man and the object of nature. 51
Mangguangon of Davao and South Cotabato; Matigsalog of Davao del Norte
and Del Sur; Tagakaolo, Tasaday and Ubo of South Cotabato; and Bagobo of
The unit of government was the "barangay," a term that derived its meaning
Davao del sur and South Cotabato.
from the Malay word "balangay," meaning, a boat, which transported them to
these shores.52 The barangay was basically a family-based community and
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, consisted of thirty to one hundred families. Each barangay was different and
Yakan/Samal, and Iranon.43 ruled by a chieftain called a "dato." It was the chieftain's duty to rule and govern
his subjects and promote their welfare and interests. A chieftain had wide
How these indigenous peoples came to live in the Philippines goes back to powers for he exercised all the functions of government. He was the executive,
as early as 25,000 to 30,000 B.C. legislator and judge and was the supreme commander in time of war. 53

Before the time of Western contact, the Philippine archipelago was peopled Laws were either customary or written. Customary laws were handed
largely by the Negritos, Indonesians and Malays. 44 The strains from these down orally from generation to generation and constituted the bulk of the
groups eventually gave rise to common cultural features which became the laws of the barangay. They were preserved in songs and chants and in the
dominant influence in ethnic reformulation in the archipelago. Influences from memory of the elder persons in the community. 54 The written laws were those
that the chieftain and his elders promulgated from time to time as the necessity The societies encountered by Magellan and Legaspi therefore were primitive
arose.55 The oldest known written body of laws was the Maragtas Code by Datu economies where most production was geared to the use of the producers and
Sumakwel at about 1250 A.D. Other old codes are the Muslim Code of Luwaran to the fulfillment of kinship obligations. They were not economies geared to
and the Principal Code of Sulu. 56 Whether customary or written, the laws dealt exchange and profit.65 Moreover, the family basis of barangay membership as
with various subjects, such as inheritance, divorce, usury, loans, partnership, well as of leadership and governance worked to splinter the population of the
crime and punishment, property rights, family relations and adoption. Whenever islands into numerous small and separate communities. 66
disputes arose, these were decided peacefully through a court composed by the
chieftain as "judge" and the barangay elders as "jury." Conflicts arising between When the Spaniards settled permanently in the Philippines in 1565, they
subjects of different barangays were resolved by arbitration in which a board found the Filipinos living in barangay settlements scattered along water
composed of elders from neutral barangays acted as arbiters. 57 routes and river banks. One of the first tasks imposed on the missionaries and
the encomenderos was to collect all scattered Filipinos together in
Baranganic society had a distinguishing feature: the absence of private a reduccion.67 As early as 1551, the Spanish government assumed an unvarying
property in land. The chiefs merely administered the lands in the name of the solicitous attitude towards the natives. 68 The Spaniards regarded it a sacred
barangay. The social order was an extension of the family with chiefs "duty to conscience and humanity to civilize these less fortunate people living in
embodying the higher unity of the community. Each individual, therefore, the obscurity of ignorance" and to accord them the "moral and material
participated in the community ownership of the soil and the instruments of advantages" of community life and the "protection and vigilance afforded them
production as a member of the barangay. 58 This ancient communalism was by the same laws."69
practiced in accordance with the concept of mutual sharing of resources so that
no individual, regardless of status, was without sustenance. Ownership of land The Spanish missionaries were ordered to establish pueblos where the church
was non-existent or unimportant and the right of usufruct was what and convent would be constructed. All the new Christian converts were required
regulated the development of lands.59 Marine resources and fishing grounds to construct their houses around the church and the unbaptized were invited to
were likewise free to all. Coastal communities depended for their economic do the same.70 With the reduccion, the Spaniards attempted to "tame" the
welfare on the kind of fishing sharing concept similar to those in land reluctant Filipinos through Christian indoctrination using the convento/casa
communities.60 Recognized leaders, such as the chieftains and elders, by virtue real/plaza complex as focal point. The reduccion, to the Spaniards, was a
of their positions of importance, enjoyed some economic privileges and benefits. "civilizing" device to make the Filipinos law-abiding citizens of the Spanish
But their rights, related to either land and sea, were subject to their responsibility Crown, and in the long run, to make them ultimately adopt Hispanic culture and
to protect the communities from danger and to provide them with the leadership civilization.71
and means of survival.61
All lands lost by the old barangays in the process of pueblo organization
Sometime in the 13th century, Islam was introduced to the archipelago in as well as all lands not assigned to them and the pueblos, were now
Maguindanao. The Sultanate of Sulu was established and claimed jurisdiction declared to be crown lands or realengas, belonging to the Spanish king. It
over territorial areas represented today by Tawi-tawi, Sulu, Palawan, Basilan was from the realengas that land grants were made to non-Filipinos.72
and Zamboanga. Four ethnic groups were within this jurisdiction: Sama, Tausug,
Yakan and Subanon.62 The Sultanate of Maguindanao spread out from Cotabato The abrogation of the Filipinos' ancestral rights in land and the
toward Maranao territory, now Lanao del Norte and Lanao del Sur. 63 introduction of the concept of public domain were the most immediate
fundamental results of Spanish colonial theory and law.73 The concept that
The Muslim societies evolved an Asiatic form of feudalism where land was the Spanish king was the owner of everything of value in the Indies or
still held in common but was private in use. This is clearly indicated in the colonies was imposed on the natives, and the natives were stripped of
Muslim Code of Luwaran. The Code contains a provision on the lease of their ancestral rights to land.74
cultivated lands. It, however, has no provision for the acquisition, transfer,
cession or sale of land.64 Increasing their foothold in the Philippines, the Spanish colonialists, civil and
religious, classified the Filipinos according to their religious practices and beliefs,
and divided them into three types . First were the Indios, the Christianized The Americans classified the Filipinos into two: the Christian Filipinos and
Filipinos, who generally came from the lowland populations. Second, were the non-Christian Filipinos. The term "non-Christian" referred not to religious
the Moros or the Muslim communities, and third, were the infieles or belief, but to a geographical area, and more directly, "to natives of the Philippine
the indigenous communities.75 Islands of a low grade of civilization, usually living in tribal relationship apart from
settled communities."82
The Indio was a product of the advent of Spanish culture. This class was
favored by the Spaniards and was allowed certain status although below the Like the Spaniards, the Americans pursued a policy of assimilation. In
Spaniards. The Moros and infieles were regarded as the lowest classes.76 1903, they passed Act No. 253 creating the Bureau of Non-Christian Tribes
(BNCT). Under the Department of the Interior, the BNCT's primary task was to
The Moros and infieles resisted Spanish rule and Christianity. The Moros conduct ethnographic research among unhispanized Filipinos, including those in
were driven from Manila and the Visayas to Mindanao; while the infieles, to Muslim Mindanao, with a "special view to determining the most practicable
the hinterlands. The Spaniards did not pursue them into the deep interior. The means for bringing about their advancement in civilization and prosperity." The
upland societies were naturally outside the immediate concern of Spanish BNCT was modeled after the bureau dealing with American Indians. The
interest, and the cliffs and forests of the hinterlands were difficult and agency took a keen anthropological interest in Philippine cultural minorities and
inaccessible, allowing the infieles, in effect, relative security.77 Thus, produced a wealth of valuable materials about them.83
the infieles, which were peripheral to colonial administration, were not only able
to preserve their own culture but also thwarted the Christianization process, The 1935 Constitution did not carry any policy on the non-Christian
separating themselves from the newly evolved Christian community. 78 Their own Filipinos. The raging issue then was the conservation of the national
political, economic and social systems were kept constantly alive and vibrant. patrimony for the Filipinos.

The pro-Christian or pro-Indio attitude of colonialism brought about a generally In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in
mutual feeling of suspicion, fear, and hostility between the Christians on the one a more rapid and complete manner the economic, social, moral and political
hand and the non-Christians on the other. Colonialism tended to divide and rule advancement of the non-Christian Filipinos or national cultural minorities and to
an otherwise culturally and historically related populace through a colonial render real, complete, and permanent the integration of all said national cultural
system that exploited both the virtues and vices of the Filipinos. 79 minorities into the body politic, creating the Commission on National
Integration charged with said functions." The law called for a policy of
President McKinley, in his instructions to the Philippine Commission of integration of indigenous peoples into the Philippine mainstream and for this
April 7, 1900, addressed the existence of the infieles: purpose created the Commission on National Integration (CNI).84 The CNI
was given, more or less, the same task as the BNCT during the American
"In dealing with the uncivilized tribes of the Islands, the Commission regime. The post-independence policy of integration was like the colonial
should adopt the same course followed by Congress in permitting the policy of assimilation understood in the context of a guardian-ward
tribes of our North American Indians to maintain their tribal organization relationship.85
and government, and under which many of those tribes are now living in peace
and contentment, surrounded by civilization to which they are unable or unwilling The policy of assimilation and integration did not yield the desired result. Like
to conform. Such tribal government should, however, be subjected to wise and the Spaniards and Americans, government attempts at integration met
firm regulation; and, without undue or petty interference, constant and active with fierce resistance. Since World War II, a tidal wave of Christian settlers
effort should be exercised to prevent barbarous practices and introduce civilized from the lowlands of Luzon and the Visayas swamped the highlands and wide
customs."80 open spaces in Mindanao. 86 Knowledge by the settlers of the Public Land
Acts and the Torrens system resulted in the titling of several ancestral
Placed in an alternative of either letting the natives alone or guiding them in the lands in the settlers' names. With government initiative and participation,
path of civilization, the American government chose "to adopt the latter measure this titling displaced several indigenous peoples from their lands. Worse,
as one more in accord with humanity and with the national conscience." 81
these peoples were also displaced by projects undertaken by the national The Aquino government signified a total shift from the policy of integration
government in the name of national development. 87 to one of preservation. Invoking her powers under the Freedom Constitution,
President Aquino created the Office of Muslim Affairs, Office for Northern
It was in the 1973 Constitution that the State adopted the following provision: Cultural Communities and the Office for Southern Cultural Communities
all under the Office of the President.95
"The State shall consider the customs, traditions, beliefs, and interests of
national cultural communities in the formulation and implementation of State The 1987 Constitution carries at least six (6) provisions which insure the
policies."88 right of tribal Filipinos to preserve their way of life. 96 This Constitution
goes further than the 1973 Constitution by expressly guaranteeing the
For the first time in Philippine history, the "non-Christian tribes" or the rights of tribal Filipinos to their ancestral domains and ancestral lands. By
"cultural minorities" were addressed by the highest law of the Republic, recognizing their right to their ancestral lands and domains, the State has
and they were referred to as "cultural communities." More importantly this effectively upheld their right to live in a culture distinctly their own.
time, their "uncivilized" culture was given some recognition and their "customs,
traditions, beliefs and interests" were to be considered by the State in the 2. Their Concept of Land
formulation and implementation of State policies. President Marcos abolished
the CNI and transferred its functions to the Presidential Adviser on National Indigenous peoples share distinctive traits that set them apart from the
Minorities (PANAMIN). The PANAMIN was tasked to integrate the ethnic Filipino mainstream. They are non-Christians. They live in less accessible,
groups that sought full integration into the larger community, and at the same marginal, mostly upland areas. They have a system of self-government not
time "protect the rights of those who wish to preserve their original lifeways dependent upon the laws of the central administration of the Republic of the
beside the larger community."89 In short, while still adopting the integration Philippines. They follow ways of life and customs that are perceived as different
policy, the decree recognized the right of tribal Filipinos to preserve their from those of the rest of the population. 97 The kind of response the indigenous
way of life.90 peoples chose to deal with colonial threat worked well to their advantage by
making it difficult for Western concepts and religion to erode their customs and
In 1974, President Marcos promulgated P.D. No. 410, otherwise known as traditions. The "infieles societies" which had become peripheral to colonial
the Ancestral Lands Decree. The decree provided for the issuance of land administration, represented, from a cultural perspective, a much older base of
occupancy certificates to members of the national cultural communities who archipelagic culture. The political systems were still structured on the patriarchal
were given up to 1984 to register their claims. 91 In 1979, the Commission on and kinship oriented arrangement of power and authority. The economic
the Settlement of Land Problems was created under E.O. No. 561 which activities were governed by the concepts of an ancient communalism and
provided a mechanism for the expeditious resolution of land problems involving mutual help. The social structure which emphasized division of labor and
small settlers, landowners, and tribal Filipinos. 92 distinction of functions, not status, was maintained. The cultural styles and forms
of life portraying the varieties of social courtesies and ecological adjustments
Despite the promulgation of these laws, from 1974 to the early 1980's, some were kept constantly vibrant. 98
100,000 Kalingas and Bontoks of the Cordillera region were displaced by the
Chico River dam project of the National Power Corporation (NPC). The Land is the central element of the indigenous peoples' existence. There is
Manobos of Bukidnon saw their land bulldozed by the Bukidnon Sugar no traditional concept of permanent, individual, land ownership. Among the
Industries Company (BUSCO). In Agusan del Sur, the National Development Igorots, ownership of land more accurately applies to the tribal right to use the
Company was authorized by law in 1979 to take approximately 40,550 hectares land or to territorial control. The people are the secondary owners or stewards of
of land that later became the NDC-Guthrie plantation in Agusan del Sur. Most of the land and that if a member of the tribe ceases to work, he loses his claim of
the land was possessed by the Agusan natives. 93 Timber concessions, water ownership, and the land reverts to the beings of the spirit world who are its true
projects, plantations, mining, and cattle ranching and other projects of the and primary owners. Under the concept of "trusteeship," the right to possess the
national government led not only to the eviction of the indigenous peoples from land does not only belong to the present generation but the future ones as well. 99
their land but also to the reduction and destruction of their natural environment. 94
Customary law on land rests on the traditional belief that no one owns the land Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was
except the gods and spirits, and that those who work the land are its mere a consolidation of four proposed measures referred to the Committees on
stewards.100 Customary law has a strong preference for communal Cultural Communities, Environment and Natural Resources, Ways and Means,
ownership, which could either be ownership by a group of individuals or as well as Finance. It adopted almost en toto the comprehensive version of
families who are related by blood or by marriage, 101 or ownership by residents of Senate Bill Nos. 1476 and 1486 which was a result of six regional
the same locality who may not be related by blood or marriage. The system of consultations and one national consultation with indigenous peoples
communal ownership under customary laws draws its meaning from the nationwide.108 At the Second Regular Session of the Tenth Congress, Senator
subsistence and highly collectivized mode of economic production. The Flavier, in his sponsorship speech, gave a background on the situation of
Kalingas, for instance, who are engaged in team occupation like hunting, indigenous peoples in the Philippines, to wit:
foraging for forest products, and swidden farming found it natural that forest
areas, swidden farms, orchards, pasture and burial grounds should be "The Indigenous Cultural Communities, including the Bangsa Moro, have long
communally-owned.102 For the Kalingas, everybody has a common right to a suffered from the dominance and neglect of government controlled by the
common economic base. Thus, as a rule, rights and obligations to the land are majority. Massive migration of their Christian brothers to their homeland shrunk
shared in common. their territory and many of the tribal Filipinos were pushed to the hinterlands.
Resisting the intrusion, dispossessed of their ancestral land and with the
Although highly bent on communal ownership, customary law on land massive exploitation of their natural resources by the elite among the migrant
also sanctions individual ownership. The residential lots and terrace rice population, they became marginalized. And the government has been an
farms are governed by a limited system of individual ownership. It is limited indispensable party to this insidious conspiracy against the Indigenous Cultural
because while the individual owner has the right to use and dispose of the Communities (ICCs). It organized and supported the resettlement of people to
property, he does not possess all the rights of an exclusive and full owner as their ancestral land, which was massive during the Commonwealth and early
defined under our Civil Code. 103 Under Kalinga customary law, the alienation of years of the Philippine Republic. Pursuant to the Regalian Doctrine first
individually-owned land is strongly discouraged except in marriage and introduced to our system by Spain through the Royal Decree of 13 February
succession and except to meet sudden financial needs due to sickness, death in 1894 or the Maura Law, the government passed laws to legitimize the wholesale
the family, or loss of crops. 104 Moreover, and to be alienated should first be landgrabbing and provide for easy titling or grant of lands to migrant
offered to a clan-member before any village-member can purchase it, and in no homesteaders within the traditional areas of the ICCs." 109
case may land be sold to a non-member of the ili.105
Senator Flavier further declared:
Land titles do not exist in the indigenous peoples' economic and social
system. The concept of individual land ownership under the civil law is "The IPs are the offsprings and heirs of the peoples who have first inhabited and
alien to them. Inherently colonial in origin, our national land laws and cared for the land long before any central government was established. Their
governmental policies frown upon indigenous claims to ancestral lands. ancestors had territories over which they ruled themselves and related with
Communal ownership is looked upon as inferior, if not inexistent.106 other tribes. These territories- the land- include people, their dwelling, the
mountains, the water, the air, plants, forest and the animals. This is their
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION. environment in its totality. Their existence as indigenous peoples is manifested
in their own lives through political, economic, socio-cultural and spiritual
A. The Legislative History of the IPRA practices. The IPs culture is the living and irrefutable proof to this.

It was to address the centuries-old neglect of the Philippine indigenous Their survival depends on securing or acquiring land rights; asserting their rights
peoples that the Tenth Congress of the Philippines, by their joint efforts, passed to it; and depending on it. Otherwise, IPs shall cease to exist as distinct
and approved R.A. No. 8371, the Indigenous Peoples Rights Act (IPRA) of peoples."110
1997. The law was a consolidation of two Bills- Senate Bill No. 1728 and House
Bill No. 9125.
To recognize the rights of the indigenous peoples effectively, Senator Flavier subsequently presented and defended on the floor by Rep. Gregorio
proposed a bill based on two postulates: (1) the concept of native title; and (2) Andolana of North Cotabato.113
the principle of parens patriae.
Rep. Andolana's sponsorhip speech reads as follows:
According to Senator Flavier, "[w]hile our legal tradition subscribes to the
Regalian Doctrine reinstated in Section 2, Article XII of the 1987 Constitution," "This Representation, as early as in the 8th Congress, filed a bill of similar
our "decisional laws" and jurisprudence passed by the State have "made implications that would promote, recognize the rights of indigenous cultural
exception to the doctrine." This exception was first laid down in the case communities within the framework of national unity and development.
of Cariño v. Insular Government where:
Apart from this, Mr. Speaker, is our obligation, the government's obligation to
"x x x the court has recognized long occupancy of land by an indigenous assure and ascertain that these rights shall be well-preserved and the cultural
member of the cultural communities as one of private ownership, which, in legal traditions as well as the indigenous laws that remained long before this Republic
concept, is termed "native title." This ruling has not been overturned. In fact, it was established shall be preserved and promoted. There is a need, Mr.
was affirmed in subsequent cases."111 Speaker, to look into these matters seriously and early approval of the substitute
bill shall bring into reality the aspirations, the hope and the dreams of more than
Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, 12 million Filipinos that they be considered in the mainstream of the Philippine
P.D. 705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous society as we fashion for the year 2000." 114
Region of Muslim Mindanao). These laws, explicitly or implicitly, and liberally or
restrictively, recognized "native title" or "private right" and the existence of Rep. Andolana stressed that H.B. No. 9125 is based on the policy of
ancestral lands and domains. Despite the passage of these laws, however, preservation as mandated in the Constitution. He also emphasized that the
Senator Flavier continued: rights of IPs to their land was enunciated in Cariño v. Insular
Government which recognized the fact that they had vested rights prior to the
"x x x the executive department of government since the American occupation establishment of the Spanish and American regimes. 115
has not implemented the policy. In fact, it was more honored in its breach than in
its observance, its wanton disregard shown during the period unto the After exhaustive interpellation, House Bill No. 9125, and its corresponding
Commonwealth and the early years of the Philippine Republic when government amendments, was approved on Second Reading with no objections.
organized and supported massive resettlement of the people to the land of the
ICCs." IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE
CONSTITUTION.
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and
possess their ancestral land. The bill was prepared also under the principle A. Ancestral Domains and Ancestral Lands are the Private Property of
of parens patriae inherent in the supreme power of the State and deeply Indigenous Peoples and Do Not Constitute Part of the Land of the Public
embedded in Philippine legal tradition. This principle mandates that persons Domain.
suffering from serious disadvantage or handicap, which places them in a
position of actual inequality in their relation or transaction with others, are
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral
entitled to the protection of the State.
domains and ancestral lands. Ancestral lands are not the same as ancestral
domains. These are defined in Section 3 [a] and [b] of the Indigenous Peoples
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Right Act, viz:
Senators voting in favor and none against, with no abstention.112
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas,
Committee on Cultural Communities. It was originally authored and
and natural resources therein, held under a claim of ownership, occupied or Ancestral lands are lands held by the ICCs/IPs under the same conditions as
possessed by ICCs/IPs by themselves or through their ancestors, communally ancestral domains except that these are limited to lands and that these lands
or individually since time immemorial, continuously to the present except when are not merely occupied and possessed but are also utilized by the ICCs/IPs
interrupted by war, force majeure or displacement by force, deceit, stealth or as under claims of individual or traditional group ownership. These lands include
a consequence of government projects or any other voluntary dealings entered but are not limited to residential lots, rice terraces or paddies, private forests,
into by government and private individuals/corporations, and which are swidden farms and tree lots.117
necessary to ensure their economic, social and cultural welfare. It shall include
ancestral lands, forests, pasture, residential, agricultural, and other lands The procedures for claiming ancestral domains and lands are similar to the
individually owned whether alienable and disposable or otherwise, hunting procedures embodied in Department Administrative Order (DAO) No. 2, series
grounds, burial grounds, worship areas, bodies of water, mineral and other of 1993, signed by then Secretary of the Department of Environment and
natural resources, and lands which may no longer be exclusively occupied by Natural Resources (DENR) Angel Alcala. 118 DAO No. 2 allowed the delineation
ICCs/IPs but from which they traditionally had access to for their subsistence of ancestral domains by special task forces and ensured the issuance of
and traditional activities, particularly the home ranges of ICCs/IPs who are still Certificates of Ancestral Land Claims (CALC's) and Certificates of Ancestral
nomadic and/or shifting cultivators; Domain Claims (CADC's) to IPs.

b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied, The identification and delineation of these ancestral domains and lands is a
possessed and utilized by individuals, families and clans who are members of power conferred by the IPRA on the National Commission on Indigenous
the ICCs/IPs since time immemorial, by themselves or through their Peoples (NCIP).119 The guiding principle in identification and delineation is self-
predecessors-in-interest, under claims of individual or traditional group delineation.120 This means that the ICCs/IPs have a decisive role in determining
ownership, continuously, to the present except when interrupted by war, force the boundaries of their domains and in all the activities pertinent thereto. 121
majeure or displacement by force, deceit, stealth, or as a consequence of
government projects and other voluntary dealings entered into by government The procedure for the delineation and recognition of ancestral domains is set
and private individuals/corporations, including, but not limited to, residential lots, forth in Sections 51 and 52 of the IPRA. The identification, delineation and
rice terraces or paddies, private forests, swidden farms and tree lots." certification of ancestral lands is in Section 53 of said law.

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of Upon due application and compliance with the procedure provided under the law
ownership, occupied or possessed by ICCs/IPs by themselves or through their and upon finding by the NCIP that the application is meritorious, the NCIP shall
ancestors, communally or individually since time immemorial, continuously until issue a Certificate of Ancestral Domain Title (CADT) in the name of the
the present, except when interrupted by war, force majeure or displacement by community concerned.122 The allocation of lands within the ancestral
force, deceit, stealth or as a consequence of government projects or any other domain to any individual or indigenous corporate (family or clan) claimants is
voluntary dealings with government and/or private individuals or left to the ICCs/IPs concerned to decide in accordance with customs and
corporations. Ancestral domains comprise lands, inland waters, coastal traditions.123 With respect to ancestral lands outside the ancestral domain, the
areas, and natural resources therein and includes ancestral lands, forests, NCIP issues a Certificate of Ancestral Land Title (CALT). 124
pasture, residential, agricultural, and other lands individually owned
whether alienable or not, hunting grounds, burial grounds, worship areas,
CADT's and CALT's issued under the IPRA shall be registered by the NCIP
bodies of water, mineral and other natural resources. They also include
before the Register of Deeds in the place where the property is situated. 125
lands which may no longer be exclusively occupied by ICCs/IPs but from which
they traditionally had access to for their subsistence and traditional activities,
particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting (1) Right to Ancestral Domains and Ancestral Lands: How Acquired
cultivators.116
The rights of the ICCs/IPs to their ancestral domains and ancestral lands may
be acquired in two modes: (1) by native title over both ancestral lands and
domains; or (2) by torrens title under the Public Land Act and the Land inherited the land in accordance with Igorot custom. He tried to have the land
Registration Act with respect to ancestral lands only. adjusted under the Spanish land laws, but no document issued from the Spanish
Crown.131 In 1901, Cariño obtained a possessory title to the land under the
(2) The Concept of Native Title Spanish Mortgage Law.132 The North American colonial government, however,
ignored his possessory title and built a public road on the land prompting him to
Native title is defined as: seek a Torrens title to his property in the land registration court. While his
petition was pending, a U.S. military reservation 133 was proclaimed over his land
and, shortly thereafter, a military detachment was detailed on the property with
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains
orders to keep cattle and trespassers, including Cariño, off the land. 134
which, as far back as memory reaches, have been held under a claim
of private ownership by ICCs/IPs, have never been public lands and are
thus indisputably presumed to have been held that way since before the In 1904, the land registration court granted Cariño's application for absolute
Spanish Conquest."126 ownership to the land. Both the Government of the Philippine Islands and the
U.S. Government appealed to the C.F.I. of Benguet which reversed the land
registration court and dismissed Cariño's application. The Philippine Supreme
Native title refers to ICCs/IPs' preconquest rights to lands and domains held
Court135 affirmed the C.F.I. by applying the Valenton ruling. Cariño took the case
under a claim of private ownership as far back as memory reaches. These lands
to the U.S. Supreme Court.136 On one hand, the Philippine government invoked
are deemed never to have been public lands and are indisputably presumed to
the Regalian doctrine and contended that Cariño failed to comply with the
have been held that way since before the Spanish Conquest. The rights of
provisions of the Royal Decree of June 25, 1880, which required registration of
ICCs/IPs to their ancestral domains (which also include ancestral lands) by
land claims within a limited period of time. Cariño, on the other, asserted that he
virtue of native title shall be recognized and respected. 127 Formal recognition,
was the absolute owner of the land jure gentium, and that the land never formed
when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of
part of the public domain.
Ancestral Domain Title (CADT), which shall recognize the title of the concerned
ICCs/IPs over the territories identified and delineated. 128
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S.
Supreme Court held:
Like a torrens title, a CADT is evidence of private ownership of land by native
title. Native title, however, is a right of private ownership peculiarly granted to
ICCs/IPs over their ancestral lands and domains. The IPRA categorically "It is true that Spain, in its earlier decrees, embodied the universal feudal theory
declares ancestral lands and domains held by native title as never to have that all lands were held from the Crown, and perhaps the general attitude of
been public land. Domains and lands held under native title are, therefore, conquering nations toward people not recognized as entitled to the treatment
indisputably presumed to have never been public lands and are private. accorded to those in the same zone of civilization with themselves. It is true,
also, that in legal theory, sovereignty is absolute, and that, as against foreign
nations, the United States may assert, as Spain asserted, absolute power. But it
(a) Cariño v. Insular Government129
does not follow that, as against the inhabitants of the Philippines, the United
States asserts that Spain had such power. When theory is left on one side,
The concept of native title in the IPRA was taken from the 1909 case of Cariño sovereignty is a question of strength, and may vary in degree. How far a new
v. Insular Government.130 Cariño firmly established a concept of private land sovereign shall insist upon the theoretical relation of the subjects to the head in
title that existed irrespective of any royal grant from the State. the past, and how far it shall recognize actual facts, are matters for it to
decide."137
In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land
registration court 146 hectares of land in Baguio Municipality, Benguet Province. The U.S. Supreme Court noted that it need not accept Spanish doctrines. The
He claimed that this land had been possessed and occupied by his ancestors choice was with the new colonizer. Ultimately, the matter had to be decided
since time immemorial; that his grandfather built fences around the property for under U.S. law.
the holding of cattle and that his father cultivated some parts of the land. Cariño
The Cariño decision largely rested on the North American constitutionalist's The court thus laid down the presumption of a certain title held (1) as far back
concept of "due process" as well as the pronounced policy "to do justice to the as testimony or memory went, and (2) under a claim of private ownership. Land
natives."138 It was based on the strong mandate extended to the Islands via the held by this title is presumed to "never have been public land."
Philippine Bill of 1902 that "No law shall be enacted in said islands which shall
deprive any person of life, liberty, or property without due process of law, or Against this presumption, the U.S. Supreme Court analyzed the Spanish
deny to any person therein the equal protection of the laws." The court declared: decrees upheld in the 1904 decision of Valenton v. Murciano. The U.S.
Supreme Court found no proof that the Spanish decrees did not honor native
"The acquisition of the Philippines was not like the settlement of the white race title. On the contrary, the decrees discussed in Valenton appeared to recognize
in the United States. Whatever consideration may have been shown to the North that the natives owned some land, irrespective of any royal grant. The Regalian
American Indians, the dominant purpose of the whites in America was to occupy doctrine declared in the preamble of the Recopilacion was all "theory and
land. It is obvious that, however stated, the reason for our taking over the discourse" and it was observed that titles were admitted to exist beyond the
Philippines was different. No one, we suppose, would deny that, so far as powers of the Crown, viz:
consistent with paramount necessities, our first object in the internal
administration of the islands is to do justice to the natives, not to exploit their "If the applicant's case is to be tried by the law of Spain, we do not
country for private gain. By the Organic Act of July 1, 1902, chapter 1369, discover such clear proof that it was bad by that law as to satisfy us that
section 12 (32 Statutes at Large, 691), all the property and rights acquired there he does not own the land. To begin with, the older decrees and laws cited
by the United States are to be administered 'for the benefit of the inhabitants by the counsel for the plaintiff in error seem to indicate pretty clearly that
thereof.' It is reasonable to suppose that the attitude thus assumed by the the natives were recognized as owning some lands, irrespective of any
United States with regard to what was unquestionably its own is also its attitude royal grant. In other words, Spain did not assume to convert all the native
in deciding what it will claim for its own. The same statute made a bill of rights, inhabitants of the Philippines into trespassers or even into tenants at will. For
embodying the safeguards of the Constitution, and, like the Constitution, instance, Book 4, title 12, Law 14 of the the Recopilacion de Leyes de las Indias,
extends those safeguards to all. It provides that 'no law shall be enacted in said cited for a contrary conclusion in Valenton v. Murciano, 3 Philippine 537, while it
islands which shall deprive any person of life, liberty, or property without due commands viceroys and others, when it seems proper, to call for the exhibition
process of law, or deny to any person therein the equal protection of the laws.' of grants, directs them to confirm those who hold by good grants or justa
In the light of the declaration that we have quoted from section 12, it is hard to prescripcion. It is true that it begins by the characteristic assertion of feudal
believe that the United States was ready to declare in the next breath that "any overlordship and the origin of all titles in the King or his predecessors.
person" did not embrace the inhabitants of Benguet, or that it meant by That was theory and discourse. The fact was that titles were admitted to
"property" only that which had become such by ceremonies of which presumably exist that owed nothing to the powers of Spain beyond this recognition in
a large part of the inhabitants never had heard, and that it proposed to treat as their books." (Emphasis supplied).141
public land what they, by native custom and by long association,- of the
profoundest factors in human thought,- regarded as their own." 139 The court further stated that the Spanish "adjustment" proceedings never held
sway over unconquered territories. The wording of the Spanish laws were not
The Court went further: framed in a manner as to convey to the natives that failure to register what to
them has always been their own would mean loss of such land. The registration
"Every presumption is and ought to be against the government in a case like the requirement was "not to confer title, but simply to establish it;" it was "not
present. It might, perhaps, be proper and sufficient to say that when, as far calculated to convey to the mind of an Igorot chief the notion that ancient family
back as testimony or memory goes, the land has been held by individuals possessions were in danger, if he had read every word of it."
under a claim of private ownership, it will be presumed to have been held
in the same way from before the Spanish conquest, and never to have By recognizing this kind of title, the court clearly repudiated the doctrine
been public land. Certainly in a case like this, if there is doubt or ambiguity in of Valenton. It was frank enough, however, to admit the possibility that the
the Spanish law, we ought to give the applicant the benefit of the doubt." 140 applicant might have been deprived of his land under Spanish law because of
the inherent ambiguity of the decrees and concomitantly, the various
interpretations which may be given them. But precisely because of the Land Law.146 This article was made after Professor Lynch visited over thirty
ambiguity and of the strong "due process mandate" of the Constitution, tribal communities throughout the country and studied the origin and
the court validated this kind of title.142 This title was sufficient, even without development of Philippine land laws.147 He discussed Cariño extensively and
government administrative action, and entitled the holder to a Torrens certificate. used the term "native title" to refer to Cariño's title as discussed and upheld by
Justice Holmes explained: the U.S. Supreme Court in said case.

"It will be perceived that the rights of the applicant under the Spanish law (b) Indian Title
present a problem not without difficulties for courts of a legal tradition. We have
deemed it proper on that account to notice the possible effect of the change of In a footnote in the same article, Professor Lynch stated that the concept of
sovereignty and the act of Congress establishing the fundamental principles now "native title" as defined by Justice Holmes in Cariño "is conceptually similar to
to be observed. Upon a consideration of the whole case we are of the opinion "aboriginal title" of the American Indians. 148 This is not surprising, according to
that law and justice require that the applicant should be granted what he seeks, Prof. Lynch, considering that during the American regime, government policy
and should not be deprived of what, by the practice and belief of those among towards ICCs/IPs was consistently made in reference to native
whom he lived, was his property, through a refined interpretation of an almost Americans.149 This was clearly demonstrated in the case of Rubi v. Provincial
forgotten law of Spain."143 Board of Mindoro.150

Thus, the court ruled in favor of Cariño and ordered the registration of the In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the
148 hectares in Baguio Municipality in his name. 144 provincial governor to remove the Mangyans from their domains and place them
in a permanent reservation in Sitio Tigbao, Lake Naujan. Any Mangyan who
Examining Cariño closer, the U.S. Supreme Court did not categorically refer to refused to comply was to be imprisoned. Rubi and some Mangyans, including
the title it upheld as "native title." It simply said: one who was imprisoned for trying to escape from the reservation, filed for
habeas corpus claiming deprivation of liberty under the Board Resolution. This
"The Province of Benguet was inhabited by a tribe that the Solicitor- Court denied the petition on the ground of police power. It upheld government
General, in his argument, characterized as a savage tribe that never was policy promoting the idea that a permanent settlement was the only successful
brought under the civil or military government of the Spanish Crown. It method for educating the Mangyans, introducing civilized customs, improving
seems probable, if not certain, that the Spanish officials would not have their health and morals, and protecting the public forests in which they
granted to anyone in that province the registration to which formerly the roamed.151 Speaking through Justice Malcolm, the court said:
plaintiff was entitled by the Spanish Laws, and which would have made his
title beyond question good. Whatever may have been the technical position of "Reference was made in the President's instructions to the Commission to the
Spain it does not follow that, in the view of the United States, he had lost all policy adopted by the United States for the Indian Tribes. The methods followed
rights and was a mere trespasser when the present government seized his land. by the Government of the Philippine Islands in its dealings with the so-called
The argument to that effect seems to amount to a denial of native titles through non-Christian people is said, on argument, to be practically identical with that
an important part of the Island of Luzon, at least, for the want of ceremonies followed by the United States Government in its dealings with the Indian tribes.
which the Spaniards would not have permitted and had not the power to Valuable lessons, it is insisted, can be derived by an investigation of the
enforce."145 American-Indian policy.

This is the only instance when Justice Holmes used the term "native title" in the From the beginning of the United States, and even before, the Indians have
entire length of the Cariño decision. It is observed that the widespread use of been treated as "in a state of pupilage." The recognized relation between the
the term "native title" may be traced to Professor Owen James Lynch, Jr., a Government of the United States and the Indians may be described as that of
Visiting Professor at the University of the Philippines College of Law from the guardian and ward. It is for the Congress to determine when and how the
Yale University Law School. In 1982, Prof. Lynch published an article in guardianship shall be terminated. The Indians are always subject to the plenary
the Philippine Law Journal entitled Native Title, Private Right and Tribal authority of the United States.152
x x x. government of the European discoverer. Speaking for the court, Chief Justice
Marshall pointed out that the potentates of the old world believed that they had
As to the second point, the facts in the Standing Bear case and the Rubi case made ample compensation to the inhabitants of the new world by bestowing
are not exactly identical. But even admitting similarity of facts, yet it is known to civilization and Christianity upon them; but in addition, said the court, they found
all that Indian reservations do exist in the United States, that Indians have been it necessary, in order to avoid conflicting settlements and consequent war, to
taken from different parts of the country and placed on these reservations, establish the principle that discovery gives title to the government by whose
without any previous consultation as to their own wishes, and that, when once subjects, or by whose authority, the discovery was made, against all other
so located, they have been made to remain on the reservation for their own European governments, which title might be consummated by
good and for the general good of the country. If any lesson can be drawn from possession.160 The exclusion of all other Europeans gave to the nation making
the Indian policy of the United States, it is that the determination of this policy is the discovery the sole right of acquiring the soil from the natives and
for the legislative and executive branches of the government and that when establishing settlements upon it. As regards the natives, the court further stated
once so decided upon, the courts should not interfere to upset a carefully that:
planned governmental system. Perhaps, just as many forceful reasons exist for
the segregation of the Manguianes in Mindoro as existed for the segregation of "Those relations which were to exist between the discoverer and the natives
the different Indian tribes in the United States."153 were to be regulated by themselves. The rights thus acquired being exclusive,
no other power could interpose between them.
Rubi applied the concept of Indian land grants or reservations in the Philippines.
An Indian reservation is a part of the public domain set apart by proper authority In the establishment of these relations, the rights of the
for the use and occupation of a tribe or tribes of Indians. 154 It may be set apart by original inhabitants were, in no instance, entirely disregarded; but were
an act of Congress, by treaty, or by executive order, but it cannot be established necessarily, to a considerable extent, impaired. They were admitted to be the
by custom and prescription. 155 rightful occupants of the soil, with a legal as well as just claim to retain
possession of it, and to use it according to their own discretion; but their
Indian title to land, however, is not limited to land grants or reservations. It rights to complete sovereignty, as independent nations, were necessarily
also covers the "aboriginal right of possession or occupancy." 156 The diminished, and their power to dispose of the soil at their own will, to
aboriginal right of possession depends on the actual occupancy of the lands in whomsoever they pleased, was denied by the fundamental principle that
question by the tribe or nation as their ancestral home, in the sense that such discovery gave exclusive title to those who made it.
lands constitute definable territory occupied exclusively by the particular tribe or
nation.157 It is a right which exists apart from any treaty, statute, or other While the different nations of Europe respected the right of the natives as
governmental action, although in numerous instances treaties have been occupants, they asserted the ultimate dominion to be in themselves; and
negotiated with Indian tribes, recognizing their aboriginal possession and claimed and exercised, as a consequence of this ultimate dominion, a
delimiting their occupancy rights or settling and adjusting their boundaries. 158 power to grant the soil, while yet in possession of the natives. These
grants have been understood by all to convey a title to the grantees,
American jurisprudence recognizes the Indians' or native Americans' subject only to the Indian right of occupancy."161
rights to land they have held and occupied before the "discovery" of the
Americas by the Europeans. The earliest definitive statement by the U.S. Thus, the discoverer of new territory was deemed to have obtained
Supreme Court on the nature of aboriginal title was made in 1823 the exclusive right to acquire Indian land and extinguish Indian titles. Only to
in Johnson & Graham's Lessee v. M'Intosh.159 the discoverer- whether to England, France, Spain or Holland- did this right
belong and not to any other nation or private person. The mere acquisition of the
In Johnson, the plaintiffs claimed the land in question under two (2) grants right nonetheless did not extinguish Indian claims to land. Rather, until the
made by the chiefs of two (2) Indian tribes. The U.S. Supreme Court refused to discoverer, by purchase or conquest, exercised its right, the concerned Indians
recognize this conveyance, the plaintiffs being private persons. The only were recognized as the "rightful occupants of the soil, with a legal as well as just
conveyance that was recognized was that made by the Indians to the claim to retain possession of it." Grants made by the discoverer to her subjects
of lands occupied by the Indians were held to convey a title to the grantees, This relation was that of a nation claiming and receiving the protection of one
subject only to the Indian right of occupancy. Once the discoverer purchased the more powerful, not that of individuals abandoning their national character, and
land from the Indians or conquered them, it was only then that the discoverer submitting as subjects to the laws of a master."166
gained an absolute title unrestricted by Indian rights.
It was the policy of the U.S. government to treat the Indians as nations with
The court concluded, in essence, that a grant of Indian lands by Indians could distinct territorial boundaries and recognize their right of occupancy over all the
not convey a title paramount to the title of the United States itself to other lands within their domains. Thus:
parties, saying:
"From the commencement of our government Congress has passed acts to
"It has never been contended that the Indian title amounted to nothing. Their regulate trade and intercourse with the Indians; which treat them as nations,
right of possession has never been questioned. The claim of government respect their rights, and manifest a firm purpose to afford that protection which
extends to the complete ultimate title, charged with this right of treaties stipulate. All these acts, and especially that of 1802, which is still in
possession, and to the exclusive power of acquiring that right."162 force, manifestly consider the several Indian nations as distinct political
communities, having territorial boundaries, within which their authority is
It has been said that the history of America, from its discovery to the present exclusive, and having a right to all the lands within those boundaries,
day, proves the universal recognition of this principle. 163 which is not only acknowledged, but guaranteed by the United States.

The Johnson doctrine was a compromise. It protected Indian rights and their x x x.

native lands without having to invalidate conveyances made by the government
to many U.S. citizens.164 "The Indian nations had always been considered as distinct, independent
political communities, retaining their original natural rights, as the
Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, undisputed possessors of the soil from time immemorial, with the single
the State of Georgia enacted a law requiring all white persons residing within the exception of that imposed by irresistible power, which excluded them from
Cherokee nation to obtain a license or permit from the Governor of Georgia; and intercourse with any other European potentate than the first discoverer of the
any violation of the law was deemed a high misdemeanor. The plaintiffs, who coast of the particular region claimed: and this was a restriction which those
were white missionaries, did not obtain said license and were thus charged with European potentates imposed on themselves, as well as on the Indians. The
a violation of the Act. very term "nation," so generally applied to them, means "a people distinct from
others." x x x.167
The U.S. Supreme Court declared the Act as unconstitutional for interfering with
the treaties established between the United States and the Cherokee nation as The Cherokee nation, then, is a distinct community, occupying its own territory,
well as the Acts of Congress regulating intercourse with them. It characterized with boundaries accurately described, in which the laws of Georgia can have no
the relationship between the United States government and the Indians as: force, and which the citizens of Georgia have no right to enter but with the
assent of the Cherokees themselves or in conformity with treaties and with the
"The Indian nations were, from their situation, necessarily dependent on some acts of Congress. The whole intercourse between the United States and this
foreign potentate for the supply of their essential wants, and for their protection nation is, by our Constitution and laws, vested in the government of the United
from lawless and injurious intrusions into their country. That power was naturally States."168
termed their protector. They had been arranged under the protection of Great
Britain; but the extinguishment of the British power in their neighborhood, and The discovery of the American continent gave title to the government of the
the establishment of that of the United States in its place, led naturally to the discoverer as against all other European governments. Designated as the naked
declaration, on the part of the Cherokees, that they were under the protection of fee,169 this title was to be consummated by possession and was subject to the
the United States, and of no other power. They assumed the relation with the Indian title of occupancy. The discoverer acknowledged the Indians' legal and
United States which had before subsisted with Great Britain. just claim to retain possession of the land, the Indians being the original
inhabitants of the land. The discoverer nonetheless asserted the exclusive right clear. First, aboriginal title is recognized. Second, indigenous property systems
to acquire the Indians' land- either by purchase, "defensive" conquest, or are also recognized. From a legal point of view, certain benefits can be drawn
cession- and in so doing, extinguish the Indian title. Only the discoverer could from a comparison of Philippine IPs to native Americans. 183 Despite the
extinguish Indian title because it alone asserted ultimate dominion in itself. Thus, similarities between native title and aboriginal title, however, there are at present
while the different nations of Europe respected the rights of the natives as some misgivings on whether jurisprudence on American Indians may be cited
occupants, they all asserted the ultimate dominion and title to be in authoritatively in the Philippines. The U.S. recognizes the possessory rights of
themselves.170 the Indians over their land; title to the land, however, is deemed to have passed
to the U.S. as successor of the discoverer. The aboriginal title of ownership is
As early as the 19th century, it became accepted doctrine that although fee not specifically recognized as ownership by action authorized by
title to the lands occupied by the Indians when the colonists arrived Congress.184 The protection of aboriginal title merely guards against
became vested in the sovereign- first the discovering European nation and encroachment by persons other than the Federal Government. 185 Although there
later the original 13 States and the United States- a right of occupancy in are criticisms against the refusal to recognize the native Americans' ownership
the Indian tribes was nevertheless recognized. The Federal Government of these lands,186 the power of the State to extinguish these titles has remained
continued the policy of respecting the Indian right of occupancy, sometimes firmly entrenched.187
called Indian title, which it accorded the protection of complete ownership. 171 But
this aboriginal Indian interest simply constitutes "permission" from the whites to Under the IPRA, the Philippine State is not barred form asserting sovereignty
occupy the land, and means mere possession not specifically recognized as over the ancestral domains and ancestral lands. 188 The IPRA, however, is still in
ownership by Congress.172 It is clear that this right of occupancy based upon its infancy and any similarities between its application in the Philippines vis-à-vis
aboriginal possession is not a property right. 173 It is vulnerable to affirmative American Jurisprudence on aboriginal title will depend on the peculiar facts of
action by the federal government who, as sovereign, possessed exclusive power each case.
to extinguish the right of occupancy at will. 174 Thus, aboriginal title is not the
same as legal title. Aboriginal title rests on actual, exclusive and continuous (c) Why the Cariño doctrine is unique
use and occupancy for a long time. 175 It entails that land owned by Indian title
must be used within the tribe, subject to its laws and customs, and cannot be In the Philippines, the concept of native title first upheld in Cariño and enshrined
sold to another sovereign government nor to any citizen. 176 Such title as Indians in the IPRA grants ownership, albeit in limited form, of the land to the ICCs/IPs.
have to possess and occupy land is in the tribe, and not in the individual Indian; Native title presumes that the land is private and was never public. Cariño is
the right of individual Indians to share in the tribal property usually depends the only case that specifically and categorically recognizes native title. The
upon tribal membership, the property of the tribe generally being held in long line of cases citing Cariño did not touch on native title and the private
communal ownership.177 character of ancestral domains and lands. Cariño was cited by the
succeeding cases to support the concept of acquisitive prescription under
As a rule, Indian lands are not included in the term "public lands," which is the Public Land Act which is a different matter altogether. Under the Public
ordinarily used to designate such lands as are subject to sale or other disposal Land Act, land sought to be registered must be public agricultural land. When
under general laws.178 Indian land which has been abandoned is deemed to fall the conditions specified in Section 48 [b] of the Public Land Act are complied
into the public domain.179 On the other hand, an Indian reservation is a part of with, the possessor of the land is deemed to have acquired, by operation of law,
the public domain set apart for the use and occupation of a tribe of a right to a grant of the land. 189 The land ceases to be part of the public
Indians.180 Once set apart by proper authority, the reservation ceases to be domain,190 ipso jure,191 and is converted to private property by the mere lapse or
public land, and until the Indian title is extinguished, no one but Congress can completion of the prescribed statutory period.
initiate any preferential right on, or restrict the nation's power to dispose of,
them.181 It was only in the case of Oh Cho v. Director of Lands192 that the court
declared that the rule that all lands that were not acquired from the government,
The American judiciary struggled for more than 200 years with the either by purchase or grant, belong to the public domain has an exception. This
ancestral land claims of indigenous Americans. 182 And two things are exception would be any land that should have been in the possession of an
occupant and of his predecessors-in-interest since time immemorial. It is this The option granted under this section shall be exercised within twenty (20) years
kind of possession that would justify the presumption that the land had never from the approval of this Act."196
been part of the public domain or that it had been private property even before
the Spanish conquest.193 Oh Cho, however, was decided under the provisions of ICCs/IPs are given the option to secure a torrens certificate of title over their
the Public Land Act and Cariño was cited to support the applicant's claim of individually-owned ancestral lands. This option is limited to ancestral lands only,
acquisitive prescription under the said Act. not domains, and such lands must be individually, not communally, owned.

All these years, Cariño had been quoted out of context simply to justify long, Ancestral lands that are owned by individual members of ICCs/IPs who, by
continuous, open and adverse possession in the concept of owner of public themselves or through their predecessors-in-interest, have been in continuous
agricultural land. It is this long, continuous, open and adverse possession in the possession and occupation of the same in the concept of owner since time
concept of owner of thirty years both for ordinary citizens 194 and members of the immemorial197 or for a period of not less than 30 years, which claims are
national cultural minorities195 that converts the land from public into private and uncontested by the members of the same ICCs/IPs, may be registered under
entitles the registrant to a torrens certificate of title. C.A. 141, otherwise known as the Public Land Act, or Act 496, the Land
Registration Act. For purposes of registration, the individually-owned ancestral
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates lands are classified as alienable and disposable agricultural lands of the public
that the Land is Private. domain, provided, they are agricultural in character and are actually used for
agricultural, residential, pasture and tree farming purposes. These lands shall be
The private character of ancestral lands and domains as laid down in the IPRA classified as public agricultural lands regardless of whether they have a slope of
is further strengthened by the option given to individual ICCs/IPs over their 18% or more.
individually-owned ancestral lands. For purposes of registration under the
Public Land Act and the Land Registration Act, the IPRA expressly The classification of ancestral land as public agricultural land is in compliance
converts ancestral land into public agricultural land which may be with the requirements of the Public Land Act and the Land Registration Act. C.A.
disposed of by the State. The necessary implication is that ancestral land 141, the Public Land Act, deals specifically with lands of the public domain. 198 Its
is private. It, however, has to be first converted to public agricultural land provisions apply to those lands "declared open to disposition or concession" x x
simply for registration purposes. To wit: x "which have not been reserved for public or quasi-public purposes, nor
appropriated by the Government, nor in any manner become private property,
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as nor those on which a private right authorized and recognized by this Act or any
amended, or the Land Registration Act 496- Individual members of cultural other valid law x x x or which having been reserved or appropriated, have
communities, with respect to their individually-owned ancestral lands who, by ceased to be so."199 Act 496, the Land Registration Act, allows registration only
themselves or through their predecessors-in-interest, have been in continuous of private lands and public agricultural lands. Since ancestral domains and
possession and occupation of the same in the concept of owner since time lands are private, if the ICC/IP wants to avail of the benefits of C.A. 141 and
immemorial or for a period of not less than thirty (30) years immediately Act 496, the IPRA itself converts his ancestral land, regardless of whether
preceding the approval of this Act and uncontested by the members of the same the land has a slope of eighteen per cent (18%) or over, 200 from private to
ICCs/IPs shall have the option to secure title to their ancestral lands under the public agricultural land for proper disposition.
provisions of Commonwealth Act 141, as amended, or the Land Registration Act
496. The option to register land under the Public Land Act and the Land Registration
Act has nonetheless a limited period. This option must be exercised within
For this purpose, said individually-owned ancestral lands, which are agricultural twenty (20) years from October 29, 1997, the date of approval of the IPRA.
in character and actually used for agricultural, residential, pasture, and tree
farming purposes, including those with a slope of eighteen percent (18%) or Thus, ancestral lands and ancestral domains are not part of the lands of
more, are hereby classified as alienable and disposable agricultural lands. the public domain. They are private and belong to the ICCs/IPs. Section 3
of Article XII on National Economy and Patrimony of the 1987 Constitution
classifies lands of the public domain into four categories: (a) agricultural, (b) this section: Provided, That at the time he files his free patent application
forest or timber, (c) mineral lands, and (d) national parks. Section 5 of the same he is not the owner of any real property secured or disposable under the
Article XII mentions ancestral lands and ancestral domains but it does not provision of the Public Land Law.203
classify them under any of the said four categories. To classify them as public
lands under any one of the four classes will render the entire IPRA law a x x x.
nullity. The spirit of the IPRA lies in the distinct concept of ancestral domains
and ancestral lands. The IPRA addresses the major problem of the ICCs/IPs "Sec. 48. The following described citizens of the Philippines, occupying lands of
which is loss of land. Land and space are of vital concern in terms of sheer the public domain or claiming to own any such lands or an interest therein, but
survival of the ICCs/IPs.201 whose titles have not been perfected or completed, may apply to the Court of
First Instance of the province where the land is located for confirmation of their
The 1987 Constitution mandates the State to "protect the rights of claims and the issuance of a certificate of title therefor, under the Land
indigenous cultural communities to their ancestral lands" and that Registration Act, to wit:
"Congress provide for the applicability of customary laws x x x in
determining the ownership and extent of ancestral domain." 202 It is the (a) [perfection of Spanish titles] xxx.
recognition of the ICCs/IPs distinct rights of ownership over their
ancestral domains and lands that breathes life into this constitutional
(b) Those who by themselves or through their predecessors-in-interest have
mandate.
been in open, continuous, exclusive, and notorious possession and occupation
of agricultural lands of the public domain, under a bona fide claim of acquisition
B. The right of ownership and possession by the ICCs/IPs of their or ownership, for at least thirty years immediately preceding the filing of the
ancestral domains is a limited form of ownership and does not include the application for confirmation of title except when prevented by war or force
right to alienate the same. majeure. These shall be conclusively presumed to have performed all the
conditions essential to a Government grant and shall be entitled to a certificate
Registration under the Public Land Act and Land Registration Act recognizes the of title under the provisions of this Chapter.
concept of ownership under the civil law. This ownership is based on adverse
possession for a specified period, and harkens to Section 44 of the Public Land (c) Members of the national cultural minorities who by themselves or
Act on administrative legalization (free patent) of imperfect or incomplete titles through their predecessors-in-interest have been in open, continuous,
and Section 48 (b) and (c) of the same Act on the judicial confirmation of exclusive and notorious possession and occupation of lands of the public
imperfect or incomplete titles. Thus: domain suitable to agriculture, whether disposable or not, under a bona
fide claim of ownership for at least 30 years shall be entitled to the rights
"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of granted in sub-section (b) hereof."204
more than twenty-four hectares and who since July fourth, 1926 or prior thereto,
has continuously occupied and cultivated, either by himself or through his Registration under the foregoing provisions presumes that the land was
predecessors-in-interest, a tract or tracts of agricultural public lands subject to originally public agricultural land but because of adverse possession since July
disposition, or who shall have paid the real estate tax thereon while the same 4, 1955 (free patent) or at least thirty years (judicial confirmation), the land has
has not been occupied by any person shall be entitled, under the provisions of become private. Open, adverse, public and continuous possession is sufficient,
this chapter, to have a free patent issued to him for such tract or tracts of such provided, the possessor makes proper application therefor. The possession has
land not to exceed twenty-four hectares. to be confirmed judicially or administratively after which a torrens title is issued.

A member of the national cultural minorities who has continuously A torrens title recognizes the owner whose name appears in the certificate as
occupied and cultivated, either by himself or through his predecessors-in- entitled to all the rights of ownership under the civil law. The Civil Code of the
interest, a tract or tracts of land, whether disposable or not since July 4, Philippines defines ownership in Articles 427, 428 and 429. This concept is
1955, shall be entitled to the right granted in the preceding paragraph of based on Roman Law which the Spaniards introduced to the Philippines through
the Civil Code of 1889. Ownership, under Roman Law, may be exercised over years in any single instance. 213 Every stockholder has the right to disassociate
things or rights. It primarily includes the right of the owner to enjoy and dispose himself from the corporation. 214 Moreover, the corporation itself may be dissolved
of the thing owned. And the right to enjoy and dispose of the thing includes the voluntarily or involuntarily.215
right to receive from the thing what it produces, 205 the right to consume the thing
by its use,206 the right to alienate, encumber, transform or even destroy the thing Communal rights to the land are held not only by the present possessors
owned,207 and the right to exclude from the possession of the thing owned by any of the land but extends to all generations of the ICCs/IPs, past, present
other person to whom the owner has not transmitted such thing. 208 and future, to the domain. This is the reason why the ancestral domain must
be kept within the ICCs/IPs themselves. The domain cannot be transferred, sold
1. The Indigenous Concept of Ownership and Customary Law. or conveyed to other persons. It belongs to the ICCs/IPs as a community.

Ownership of ancestral domains by native title does not entitle the ICC/IP to a Ancestral lands are also held under the indigenous concept of
torrens title but to a Certificate of Ancestral Domain Title (CADT). The CADT ownership. The lands are communal. These lands, however, may be
formally recognizes the indigenous concept of ownership of the ICCs/IPs over transferred subject to the following limitations: (a) only to the members of the
their ancestral domain. Thus: same ICCs/IPs; (b) in accord with customary laws and traditions; and (c) subject
to the right of redemption of the ICCs/IPs for a period of 15 years if the land was
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership transferred to a non-member of the ICCs/IPs.
sustains the view that ancestral domains and all resources found therein shall
serve as the material bases of their cultural integrity. The indigenous concept of Following the constitutional mandate that "customary law govern property rights
ownership generally holds that ancestral domains are the ICCs/IPs private but or relations in determining the ownership and extent of ancestral
community property which belongs to all generations and therefore cannot be domains,"216 the IPRA, by legislative fiat, introduces a new concept of
sold, disposed or destroyed. It likewise covers sustainable traditional resource ownership. This is a concept that has long existed under customary law.217
rights."
Custom, from which customary law is derived, is also recognized under
The right of ownership and possession of the ICCs/IPs to their ancestral the Civil Code as a source of law. 218 Some articles of the Civil Code expressly
domains is held under the indigenous concept of ownership. This concept provide that custom should be applied in cases where no codal provision is
maintains the view that ancestral domains are the ICCs/IPs private but applicable.219 In other words, in the absence of any applicable provision in the
community property. It is private simply because it is not part of the public Civil Code, custom, when duly proven, can define rights and liabilities. 220
domain. But its private character ends there. The ancestral domain is
owned in common by the ICCs/IPs and not by one particular person. The Customary law is a primary, not secondary, source of rights under the IPRA
IPRA itself provides that areas within the ancestral domains, whether delineated and uniquely applies to ICCs/IPs. Its recognition does not depend on the
or not, are presumed to be communally held. 209 These communal rights, absence of a specific provision in the civil law. The indigenous concept of
however, are not exactly the same as co-ownership rights under the Civil ownership under customary law is specifically acknowledged and recognized,
Code.210 Co-ownership gives any co-owner the right to demand partition of the and coexists with the civil law concept and the laws on land titling and land
property held in common. The Civil Code expressly provides that "no co-owner registration.221
shall be obliged to remain in the co-ownership." Each co-owner may demand at
any time the partition of the thing in common, insofar as his share is To be sure, the indigenous concept of ownership exists even without a
concerned.211 To allow such a right over ancestral domains may be destructive paper title. The CADT is merely a "formal recognition" of native title. This is
not only of customary law of the community but of the very community itself. 212 clear from Section 11 of the IPRA, to wit:

Communal rights over land are not the same as corporate rights over real "Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to
property, much less corporate condominium rights. A corporation can exist their ancestral domains by virtue of Native Title shall be recognized and
only for a maximum of fifty (50) years subject to an extension of another fifty respected. Formal recognition, when solicited by ICCs/IPs concerned shall be
embodied in a Certificate of Ancestral Domain Title, which shall recognize the measures by the government to prevent any interference with, alienation and
title of the concerned ICCs/IPs over the territories identified and delineated." encroachment upon these rights;"

The moral import of ancestral domain, native land or being native is c) Right to Stay in the Territories.- The right to stay in the territory and not to be
"belongingness" to the land, being people of the land- by sheer force of having removed therefrom. No ICCs/IPs will be relocated without their free and prior
sprung from the land since time beyond recall, and the faithful nurture of the informed consent, nor through any means other than eminent domain. x x x;
land by the sweat of one's brow. This is fidelity of usufructuary relation to the
land- the possession of stewardship through perduring, intimate tillage, and the d) Right in Case of Displacement.- In case displacement occurs as a result of
mutuality of blessings between man and land; from man, care for land; from the natural catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs
land, sustenance for man.222 in suitable areas where they can have temporary life support systems: x x x;

C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of migrant
Doctrine Enshrined in Section 2, Article XII of the 1987 Constitution. settlers and organizations into their domains;

1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall
have access to integrated systems for the management of their inland waters
The IPRA grants the ICCs/IPs several rights over their ancestral domains and and air space;
ancestral lands. Section 7 provides for the rights over ancestral domains:
g) Right to Claim Parts of Reservations.- The right to claim parts of the ancestral
"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession domains which have been reserved for various purposes, except those reserved
of ICCs/IPs to their ancestral domains shall be recognized and protected. Such and intended for common and public welfare and service;
rights include:
h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance with
a) Right of Ownership.- The right to claim ownership over lands, bodies of customary laws of the area where the land is located, and only in default thereof
water traditionally and actually occupied by ICCs/IPs, sacred places, shall the complaints be submitted to amicable settlement and to the Courts of
traditional hunting and fishing grounds, and all improvements made by Justice whenever necessary."
them at any time within the domains;
Section 8 provides for the rights over ancestral lands:
b) Right to Develop Lands and Natural Resources.- Subject to Section 56
hereof, the right to develop, control and use lands and territories "Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of
traditionally occupied, owned, or used; to manage and conserve natural the ICCs/IPs to their ancestral lands shall be recognized and protected.
resources within the territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation and utilization a) Right to transfer land/property.- Such right shall include the right to transfer
of the natural resources found therein; the right to negotiate the terms and land or property rights to/among members of the same ICCs/IPs, subject to
conditions for the exploration of natural resources in the areas for the customary laws and traditions of the community concerned.
purpose of ensuring ecological, environmental protection and the
conservation measures, pursuant to national and customary laws; the right
b) Right to Redemption.- In cases where it is shown that the transfer of
to an informed and intelligent participation in the formulation and implementation
land/property rights by virtue of any agreement or devise, to a non-member of
of any project, government or private, that will affect or impact upon the
the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or is
ancestral domains and to receive just and fair compensation for any damages
transferred for an unconscionable consideration or price, the transferor ICC/IP
which they may sustain as a result of the project; and the right to effective
shall have the right to redeem the same within a period not exceeding fifteen The State shall protect the nation's marine wealth in its archipelagic waters,
(15) years from the date of transfer." territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
Section 7 (a) defines the ICCs/IPs the right of ownership over their
ancestral domains which covers (a) lands, (b) bodies of water traditionally and The Congress may, by law, allow small-scale utilization of natural resources
actually occupied by the ICCs/IPs, (c) sacred places, (d) traditional hunting and by Filipino citizens, as well as cooperative fish farming, with priority to
fishing grounds, and (e) all improvements made by them at any time within the subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
domains. The right of ownership includes the following rights: (1) the right to
develop lands and natural resources; (b) the right to stay in the territories; (c) the The President may enter into agreements with foreign-owned corporations
right to resettlement in case of displacement; (d) the right to regulate the entry of involving either technical or financial assistance for large-scale exploration,
migrants; (e) the right to safe and clean air and water; (f) the right to claim parts development, and utilization of minerals, petroleum, and other mineral
of the ancestral domains as reservations; and (g) the right to resolve conflict in oils according to the general terms and conditions provided by law, based on
accordance with customary laws. real contributions to the economic growth and general welfare of the country. In
such agreements, the state shall promote the development and use of local
Section 8 governs their rights to ancestral lands. Unlike ownership over the scientific and technical resources.
ancestral domains, Section 8 gives the ICCs/IPs also the right to transfer the
land or property rights to members of the same ICCs/IPs or non-members The President shall notify the Congress of every contract entered into in
thereof. This is in keeping with the option given to ICCs/IPs to secure a torrens accordance with this provision, within thirty days from its execution." 223
title over the ancestral lands, but not to domains.
All lands of the public domain and all natural resources- waters, minerals,
2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the coal, petroleum, and other mineral oils, all forces of potential energy, fisheries,
Ancestral Domains Does Not Deprive the State of Ownership Over the Natural forests or timber, wildlife, flora and fauna, and other natural resources- are
Resources and Control and Supervision in their Development and Exploitation. owned by the State. The Constitution provides that in the exploration,
development and utilization of these natural resources, the State exercises full
The Regalian doctrine on the ownership, management and utilization of natural control and supervision, and may undertake the same in four (4) modes:
resources is declared in Section 2, Article XII of the 1987 Constitution, viz:
1. The State may directly undertake such activities; or
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, fisheries, forests or 2. The State may enter into co-production, joint venture or production-sharing
timber, wildlife, flora and fauna, and other natural resources are owned by agreements with Filipino citizens or qualified corporations;
the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of 3. Congress may, by law, allow small-scale utilization of natural resources by
natural resources shall be under the full control and supervision of the Filipino citizens;
State. The State may directly undertake such activities, or, it may enter
into co-production, joint venture, or production-sharing agreements with
4. For the large-scale exploration, development and utilization of minerals,
Filipino citizens, or corporations or associations at least sixty per centum
petroleum and other mineral oils, the President may enter into agreements with
of whose capital is owned by such citizens. Such agreements may be for a
foreign-owned corporations involving technical or financial assistance.
period not exceeding twenty-five years, renewable for not more than twenty-five
years, and under such terms and conditions as may be provided by law. In
cases of water rights for irrigation, water supply, fisheries, water supply, As owner of the natural resources, the State is accorded primary power
fisheries, or industrial uses other than the development of water power, and responsibility in the exploration, development and utilization of these
beneficial use may be the measure and limit of the grant. natural resources. The State may directly undertake the exploitation and
development by itself, or, it may allow participation by the private sector through The non-inclusion of ownership by the ICCs/IPs over the natural resources in
co-production,224 joint venture,225 or production-sharing agreements. 226 These Section 7(a) complies with the Regalian doctrine.
agreements may be for a period of 25 years, renewable for another 25 years.
The State, through Congress, may allow the small-scale utilization of natural (a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the
resources by Filipino citizens. For the large-scale exploration of these resources, Parameters of Sec. 7 (a) of the IPRA And is Unconstitutional.
specifically minerals, petroleum and other mineral oils, the State, through the
President, may enter into technical and financial assistance agreements with The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:
foreign-owned corporations.
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands,
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small- waters, and natural resources and all improvements made by them at any time
Scale Mining Act of 1991 (R.A. 7076) the three types of agreements, i.e., co- within the ancestral domains/ lands. These rights shall include, but not limited to,
production, joint venture or production-sharing, may apply to both large- the right over the fruits, the right to possess, the right to use, right to consume,
scale227 and small-scale mining.228 "Small-scale mining" refers to "mining right to exclude and right to recover ownership, and the rights or interests over
activities which rely heavily on manual labor using simple implements and land and natural resources. The right to recover shall be particularly applied to
methods and do not use explosives or heavy mining equipment." 229 lands lost through fraud or any form or vitiated consent or transferred for an
unconscionable price."
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs
ownership over the natural resources within their ancestral domains. The Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over
right of ICCs/IPs in their ancestral domains includes ownership, but this "lands, waters and natural resources." The term "natural resources" is not one of
"ownership" is expressly defined and limited in Section 7 (a) as: those expressly mentioned in Section 7 (a) of the law. Our Constitution and
jurisprudence clearly declare that the right to claim ownership over land does not
"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies necessarily include the right to claim ownership over the natural resources found
of water traditionally and actually occupied by ICCs/IPs, sacred places, on or under the land.231 The IPRA itself makes a distinction between land and
traditional hunting and fishing grounds, and all improvements made by them at natural resources. Section 7 (a) speaks of the right of ownership only over
any time within the domains;" the land within the ancestral domain. It is Sections 7 (b) and 57 of the law
that speak of natural resources, and these provisions, as shall be
The ICCs/IPs are given the right to claim ownership over "lands, bodies of water discussed later, do not give the ICCs/IPs the right of ownership over these
traditionally and actually occupied by ICCs/IPs, sacred places, traditional resources.
hunting and fishing grounds, and all improvements made by them at any time
within the domains." It will be noted that this enumeration does not The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was
mention bodies of water not occupied by the not specifically and categorically challenged by petitioners. Petitioners actually
ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting assail the constitutionality of the Implementing Rules in general. 232 Nevertheless,
grounds, fish in the traditional fishing grounds, forests or timber in the sacred to avoid any confusion in the implementation of the law, it is necessary to
places, etc. and all other natural resources found within the ancestral declare that the inclusion of "natural resources" in Section 1, Part II, Rule III of
domains. Indeed, the right of ownership under Section 7 (a) does not cover the Implementing Rules goes beyond the parameters of Section 7 (b) of the law
"waters, minerals, coal, petroleum and other mineral oils, all forces of and is contrary to Section 2, Article XII of the 1987 Constitution.
potential
energy, fisheries, forests or timber, wildlife, flora and fauna and all other (b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the
natural resources" enumerated in Section 2, Article XII of the 1987 IPRA Is Allowed Under Paragraph 3, Section 2 of Article XII of the
Constitution as belonging to the State. Constitution.
Ownership over natural resources remain with the State and the IPRA in Section Ownership over the natural resources in the ancestral domains remains
7 (b) merely grants the ICCs/IPs the right to manage them, viz: with the State and the ICCs/IPs are merely granted the right to "manage
and conserve" them for future generations, "benefit and share" the profits
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section from their allocation and utilization, and "negotiate the terms and
56 hereof, right to develop, control and use lands and territories traditionally conditions for their exploration" for the purpose of "ensuring ecological
occupied, owned, or used; to manage and conserve natural resources within the and environmental protection and conservation measures." It must be noted
territories and uphold the responsibilities for future generations; to benefit and that the right to negotiate the terms and conditions over the natural resources
share the profits from allocation and utilization of the natural resources found covers only their exploration which must be for the purpose of ensuring
therein; the right to negotiate the terms and conditions for the exploration of ecological and environmental protection of, and conservation measures in the
natural resources in the areas for the purpose of ensuring ecological, ancestral domain. It does not extend to the exploitation and development of
environmental protection and the conservation measures, pursuant to national natural resources.
and customary laws; the right to an informed and intelligent participation in the
formulation and implementation of any project, government or private, that will Simply stated, the ICCs/IPs' rights over the natural resources take the form
affect or impact upon the ancestral domains and to receive just and fair of management or stewardship. For the ICCs/IPs may use these resources
compensation for any damages which they may sustain as a result of the and share in the profits of their utilization or negotiate the terms for their
project; and the right to effective measures by the government to prevent any exploration. At the same time, however, the ICCs/IPs must ensure that the
interference with, alienation and encroachment upon these rights;" natural resources within their ancestral domains are conserved for future
generations and that the "utilization" of these resources must not harm the
The right to develop lands and natural resources under Section 7 (b) of the ecology and environment pursuant to national and customary laws. 234
IPRA enumerates the following rights:
The limited rights of "management and use" in Section 7 (b) must be taken
a) the right to develop, control and use lands and territories traditionally to contemplate small-scale utilization of natural resources as
occupied; distinguished from large-scale. Small-scale utilization of natural resources
is expressly allowed in the third paragraph of Section 2, Article XII of the
b) the right to manage and conserve natural resources within the territories and Constitution "in recognition of the plight of forest dwellers, gold panners,
uphold the responsibilities for future generations; marginal fishermen and others similarly situated who exploit our natural
resources for their daily sustenance and survival." 235 Section 7 (b) also expressly
mandates the ICCs/IPs to manage and conserve these resources and ensure
c) the right to benefit and share the profits from the allocation and utilization of
environmental and ecological protection within the domains, which duties, by
the natural resources found therein;
their very nature, necessarily reject utilization in a large-scale.
d) the right to negotiate the terms and conditions for the exploration of natural
(c) The Large-Scale Utilization of Natural Resources In Section 57 of the
resources for the purpose of ensuring ecological, environmental protection and
IPRA Is Allowed Under Paragraphs 1 and 4, Section 2, Article XII of the
the conservation measures, pursuant to national and customary laws;
1987 Constitution.
e) the right to an informed and intelligent participation in the formulation and
Section 57 of the IPRA provides:
implementation of any project, government or private, that will affect or impact
upon the ancestral domains and to receive just and fair compensation for any
damages which they may sustain as a result of the project; "Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall
have priority rights in the harvesting, extraction, development or
exploitation of any natural resources within the ancestral domains. A non-
f) the right to effective measures by the government to prevent any interference
member of the ICCs/IPs concerned may be allowed to take part in the
with, alienation and encroachment upon these rights. 233
development and utilization of the natural resources for a period of not
exceeding twenty-five (25) years renewable for not more than twenty-five (25) assistance for the large-scale exploration, development and utilization of
years: Provided, That a formal and written agreement is entered into with the minerals, petroleum, and other mineral oils, or allow such non-member to
ICCs/IPs concerned or that the community, pursuant to its own decision-making participate in its agreement with the ICCs/IPs. If the State decides to enter
process, has agreed to allow such operation: Provided finally, That the NCIP into an agreement with a non-ICC/IP member, the National Commission on
may exercise visitorial powers and take appropriate action to safeguard the Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the
rights of the ICCs/IPs under the same contract." agreement shall be protected. The agreement shall be for a period of 25 years,
renewable for another 25 years.
Section 57 speaks of the "harvesting, extraction, development or
exploitation of natural resources within ancestral domains" and "gives the To reiterate, in the large-scale utilization of natural resources within the
ICCs/IPs 'priority rights' therein." The terms "harvesting, extraction, ancestral domains, the State, as owner of these resources, has four (4) options:
development or exploitation" of any natural resources within the ancestral (1) it may, of and by itself, directly undertake the development and exploitation
domains obviously refer to large-scale utilization. It is utilization not merely of the natural resources; or (2) it may recognize the priority rights of the
for subsistence but for commercial or other extensive use that require ICCs/IPs by entering into an agreement with them for such development and
technology other than manual labor. 236 The law recognizes the probability of exploitation; or (3) it may enter into an agreement with a non-member of the
requiring a non-member of the ICCs/IPs to participate in the development and ICCs/IPs, whether natural or juridical, local or foreign; or (4) it may allow such
utilization of the natural resources and thereby allows such participation for a non-member to participate in the agreement with the ICCs/IPs.
period of not more than 25 years, renewable for another 25 years. This may be
done on condition that a formal written agreement be entered into by the non- The rights granted by the IPRA to the ICCs/IPs over the natural resources
member and members of the ICCs/IPs. in their ancestral domains merely gives the ICCs/IPs, as owners and
occupants of the land on which the resources are found, the right to the
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and small-scale utilization of these resources, and at the same time, a priority
conserve" the natural resources. Instead, the law only grants the ICCs/IPs in their large-scale development and exploitation. Section 57 does not
"priority rights" in the development or exploitation thereof. Priority means giving mandate the State to automatically give priority to the ICCs/IPs. The State
preference. Having priority rights over the natural resources does not has several options and it is within its discretion to choose which option
necessarily mean ownership rights. The grant of priority rights implies that there to pursue. Moreover, there is nothing in the law that gives the ICCs/IPs the right
is a superior entity that owns these resources and this entity has the power to to solely undertake the large-scale development of the natural resources within
grant preferential rights over the resources to whosoever itself chooses. their domains. The ICCs/IPs must undertake such endeavour
always under State supervision or control. This indicates that the State does not
Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an lose control and ownership over the resources even in their exploitation.
affirmation of the said doctrine that all natural resources found within the Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs who, as
ancestral domains belong to the State. It incorporates by implication the actual occupants of the land where the natural resources lie, have traditionally
Regalian doctrine, hence, requires that the provision be read in the light of utilized these resources for their subsistence and survival.
Section 2, Article XII of the 1987 Constitution. Interpreting Section 2, Article
XII of the 1987 Constitution237 in relation to Section 57 of IPRA, the State, as Neither is the State stripped of ownership and control of the natural resources by
owner of these natural resources, may directly undertake the development the following provision:
and exploitation of the natural resources by itself, or in the alternative, it
may recognize the priority rights of the ICCs/IPs as owners of the land on "Section 59. Certification Precondition.- All departments and other governmental
which the natural resources are found by entering into a co-production, agencies shall henceforth be strictly enjoined from issuing, renewing or granting
joint venture, or production-sharing agreement with them. The State may any concession, license or lease, or entering into any production-sharing
likewise enter into any of said agreements with a non-member of the agreement. without prior certification from the NCIP that the area affected does
ICCs/IPs, whether natural or juridical, or enter into agreements with not overlap with any ancestral domain. Such certification shall only be issued
foreign-owned corporations involving either technical or financial after a field-based investigation is conducted by the Ancestral Domains Office of
the area concerned: Provided, That no certification shall be issued by the NCIP Australia, and Maori in New Zealand the possibility of fighting for fundamental
without the free and prior informed and written consent of the ICCs/IPs rights and freedoms.
concerned: Provided, further, That no department, government agency or
government-owned or -controlled corporation may issue new concession, In 1974 and 1975, international indigenous organizations were founded, 239 and
license, lease, or production sharing agreement while there is a pending during the 1980's, indigenous affairs were on the international agenda. The
application for a CADT: Provided, finally, That the ICCs/IPs shall have the right people of the Philippine Cordillera were the first Asians to take part in the
to stop or suspend, in accordance with this Act, any project that has not satisfied international indigenous movement. It was the Cordillera People's Alliance that
the requirement of this consultation process." carried out successful campaigns against the building of the Chico River Dam in
1981-82 and they have since become one of the best-organized indigenous
Concessions, licenses, lease or production-sharing agreements for the bodies in the world.240
exploitation of natural resources shall not be issued, renewed or granted by all
departments and government agencies without prior certification from the NCIP Presently, there is a growing concern for indigenous rights in the international
that the area subject of the agreement does not overlap with any ancestral scene. This came as a result of the increased publicity focused on the
domain. The NCIP certification shall be issued only after a field-based continuing disrespect for indigenous human rights and the destruction of the
investigation shall have been conducted and the free and prior informed written indigenous peoples' environment, together with the national governments'
consent of the ICCs/IPs obtained. Non-compliance with the consultation inability to deal with the situation. 241 Indigenous rights came as a result of both
requirement gives the ICCs/IPs the right to stop or suspend any project granted human rights and environmental protection, and have become a part of today's
by any department or government agency. priorities for the international agenda. 242

As its subtitle suggests, this provision requires as a precondition for the International institutions and bodies have realized the necessity of applying
issuance of any concession, license or agreement over natural resources, that a policies, programs and specific rules concerning IPs in some nations. The World
certification be issued by the NCIP that the area subject of the agreement does Bank, for example, first adopted a policy on IPs as a result of the dismal
not lie within any ancestral domain. The provision does not vest the NCIP with experience of projects in Latin America. 243 The World Bank now seeks to apply
power over the other agencies of the State as to determine whether to grant or its current policy on IPs to some of its projects in Asia. This policy has provided
deny any concession or license or agreement. It merely gives the NCIP the an influential model for the projects of the Asian Development Bank.244
authority to ensure that the ICCs/IPs have been informed of the agreement and
that their consent thereto has been obtained. Note that the certification applies The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs
to agreements over natural resources that do not necessarily lie within the and declares as a State policy the promotion of their rights within the framework
ancestral domains. For those that are found within the said domains, Sections of national unity and development. 245 The IPRA amalgamates the Philippine
7(b) and 57 of the IPRA apply. category of ICCs with the international category of IPs, 246 and is heavily
influenced by both the International Labor Organization (ILO) Convention 169
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE and the United Nations (UN) Draft Declaration on the Rights of Indigenous
INDIGENOUS INTERNATIONAL MOVEMENT. Peoples.247

The indigenous movement can be seen as the heir to a history of anti- ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and
imperialism stretching back to prehistoric times. The movement received a Tribal Peoples in Independent Countries" 248 and was adopted on June 27, 1989.
massive impetus during the 1960's from two sources. First, the decolonization of It is based on the Universal Declaration of Human Rights, the International
Asia and Africa brought into the limelight the possibility of peoples controlling Covenant on Economic, Social and Cultural Rights, the International Covenant
their own destinies. Second, the right of self-determination was enshrined in the on Civil and Political Rights, and many other international instruments on the
UN Declaration on Human Rights.238 The rise of the civil rights movement and prevention of discrimination.249 ILO Convention No. 169 revised the "Convention
anti-racism brought to the attention of North American Indians, Aborigines in Concerning the Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries" (ILO No. 107) passed on
June 26, 1957. Developments in international law made it appropriate to adopt  Valenton v. Murciano, 3 Phil. 537, 543 [1904]; See also Florencio D.R. Ponce,
4

new international standards on indigenous peoples "with a view to removing the The Philippine Torrens System, p. 13 [1964].
assimilationist orientation of the earlier standards," and recognizing the
aspirations of these peoples to exercise control over their own institutions, ways 5
 Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986]; these grants were
of life and economic development."250 better known as repartimientos and encomiendas. Repartimientos were
handouts to the military as fitting reward for their services to the Spanish crown.
CONCLUSION The encomiendas were given to Spaniards to administer and develop with the
right to receive and enjoy for themselves the tributes of the natives assigned to
The struggle of the Filipinos throughout colonial history had been plagued by them.- Ponce, supra, p. 12, citing Benitez, History of the Philippines, pp. 125-
ethnic and religious differences. These differences were carried over and 126.
magnified by the Philippine government through the imposition of a national
legal order that is mostly foreign in origin or derivation. 251 Largely unpopulist, the 6
 Narciso Pena, Registration of Land Titles and Deeds, p. 2 [1994].
present legal system has resulted in the alienation of a large sector of society,
specifically, the indigenous peoples. The histories and cultures of the indigenes 7
 The Mortgage Law is a misnomer because it is primarily a law on registration of
are relevant to the evolution of Philippine culture and are vital to the property and secondarily a mortgage law- Ponce, supra, at 16.
understanding of contemporary problems.252 It is through the IPRA that an
attempt was made by our legislators to understand Filipino society not in terms 8
 Ponce, supra, at 15.
of myths and biases but through common experiences in the course of history.
The Philippines became a democracy a centennial ago and the decolonization 9
 3 Phil. 537 [1904].
process still continues. If the evolution of the Filipino people into a democratic
society is to truly proceed democratically, i.e., if the Filipinos as a whole are to
participate fully in the task of continuing democratization, 253 it is this Court's duty
10
 Id. at 540.
to acknowledge the presence of indigenous and customary laws in the country
and affirm their co-existence with the land laws in our national legal system.
11
 Id. at 548.

With the foregoing disquisitions, I vote to uphold the constitutionality of the

12
 Id. at 543-544.
Indigenous Peoples Rights Act of 1997.
13
 Id. at 543.

 Id. at 542-543. These comments by the court are clear expressions of the
14

Footnotes concept that Crown holdings embraced both imperium and dominium—Ma.

Lourdes Aranal-Sereno and Roan Libarios, The Interface Between National
 Chief Judge, US Court of Appeals for the Seventh Circuit; Senior Lecturer,
1 Land Law and Kalinga Land Law, 58 P.L.J. 420, 423 [1983].
University of Chicago Law School.
15
 Id. at 545-546.
2
 The University of Chicago Law Review, Vol. 67, Summer 2000, No. 3, p. 573.
16
 Id. at 543.
3
 Dominium is distinguished from imperium which is the government authority
possessed by the state expressed in the concept of sovereignty- Lee Hong
17
 Id. at 557.
Hok v. David, 48 SCRA 372, 377 [1972].
  Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6 Phil. 320 [1906];
18 36
 Sections 29 to 37.
Tiglao v. Insular Government, 7 Phil. 80 [1906]; and Cariño v. Insular
Government, 7 Phil. 132 [1906]; all decided by the Philippine Supreme Court. 37
 Sections 38 and 40.
19
 Please see Section 70, Act 926. 38
 Sections 74 to 77.
20
 Ponce, supra, at 33. 39
 Section 69.

 Montano v. Insular Government, 12 Phil. 572 [1909]; also cited in

21 40
 Section 73.
Ponce, supra, at 32.
 Convention Conerning Indigenous and Tribal Peoples in Independent
41

 Archbishop of Manila v. Director of Lands, 27 Phil. 245 [1914]; also cited in

22
Countries, June 27, 1989.
Ponce, supra, at 32.
 Guide to R.A. 8371, published by the Coalition for Ips Rights and ancestral
42
23
 Antonio H. Noblejas, Land Titles and Deeds, p. 250 [1961]. Domains in cooperation with the ILO and Bilance-Asia Department, p. 4 [1999]
—hereinafter referred to as Guide to R.A. 8371.
24
 Ponce, supra, at 32.
 Taken from the list of IPs sbmitted by Rep. Andolana to the house of
43

 Peña, Registration of Land Titles and Deeds, p. 26 [1982]; Noblejas, supra, at

25
Representatives during the deliberations on H.B. No. 9125—Interpellations of
32. Aug. 20, 1997, pp. 00086-00095. "lost tribes" such as the Lutangan and Tatang
have not been included.
26
 Noblejas, supra, at 32.
44
 How these people came to the Philippines may be explained by two theories.
27
 Ponce, supra, at 123-124; Noblejas, supra, at 33. One view, generally linked to Professor Otley H. Beyer, suggests the "wave
theory"—a series of arrivals in the archipelago bringing in different types and
28
 2 Aruego, The Framing of the Philippine Constitution, p. 592 [1937]. levels of culture. The Negritos, dark-skinned pygmies, came between 25,000 to
30,000 B.C. Their cultural remains are preserved by the Negrito-type Filipinos
found in Luzon, Visayas and Mindanao. Their relatively inferior culture did not
29
 Id. at 600.
enable them to overcome the pressures from the second wave of people, the
Indonesians A and B who came in 5,000 and 3,500 B.C. They are represented
30
 Id. at 600-601. today by the Kalinga, Gaddang, Isneg, Mangyan, Tagbanua, Manobo, Mandaya,
Subanon, and Sama. The first group was pushed inland as the second occupied
31
 Ibid. the coastal and downriver settlements. The last wave involved Malay migrations
between 500 B.C. and 1,500 A.D. they had a more advanced culture based on
32
 Section 7. metal age technology. They are represented by the Christianized and Islamized
Filipinos who pushed the Indonesian groups inland and occupied much of the
33
 Section 8. coastal, lowland and downstream areas.

34
 Sections 13 to 20. A second view is postulated by Robert Fox, F. Landa Jocana, Alfredo
Evangelista, and Jesus Peralta. Jocano maintains that the Negritos, Indonesians
35
 Sections 21 to 28. and Malays stand co-equal as ethnic groups without any one being dominant,
racially or culturally. The geographic distribution of the ethno-linguistic groups, 57
 Agoncillo, supra, at 42.
which shows overlapping of otherwise similar racial strains in both upland and
lowland cultures or coastal and inland communities, suggests a random and 58
 Renato Constantino, A Past Revisited , p. 38 [1975].
unstructured advent of different kinds of groups in the archipelago—Samuel K.
Tan, A History of the Philippines, published by the Manila Studies Association,  Samuel K. Tan, A History of the Philippines, published by the Manila Studies
59

Inc. and the Philippine National Historical society, Inc., pp. 33-34 [1997]; Ass’n., Inc. and the Phil. National Historical Society, Inc., p. 43 [1997].
Teodoro A. Agoncillo, History of the Filipino People, p. 21 [1990].
60
 Id.
45
 Tan, supra, at 35-36.
61
 Id. at 43-44.
 Onofre D. Corpuz, The Roots of the Filipino Nation, Philippine Centennial
46

(1898-1998) Edition, vol. 1, p. 13, Aklahi foundation, Inc. [1989]. It was in 800- 62
 Tan, supra, at 47-48.
1,000 A.D. that the Ifugaos of Northern Luzon built the rice terraces—Id. at 37.
63
 Id. at 48-49.
47
 Id. at 5-6.
64
 Cacho v. Government of the P.I., 28 Phil. 616, 625-627 [1914]; see also
48
 Id. at 13.
Ponce, The Philippine Torrens System, pp. 11-12 [1964]. In Philippine pre-
colonial history, there was only one recorded transaction on the purchase of
49
 Teodoro A. Agoncillo, History of the Filipino People, p. 54 [1990]. land. The Maragtas Code tells us of the purchase of Panay Island by ten
Bornean datus led by Datu Puti from the Atis under Marikudo in the 13th
50
 Corpuz, supra, at 5. century. The purchase price for the island was a gold salakot and a long gold
necklace – Agoncillo, supra, at 25.
51
 Id. at 44-45.
65
 Constantino, supra, at 38.
52
 Agoncillo, supra, at 40.
66
 Corpuz, supra, at 39.
53
 Id. at 40-41.
 Resettlement- "bajo el son de la campana" (under the sound of the bell)
67

 Rafael Iriarte, History of the Judicial System, the Philippine Indigenous Era

54
or "bajo el toque de la campana" (Under the peal of the bell).
Prior to 1565, unpublished work submitted as entry to the Centennial Essay-
Writing Contest sponsored by the National Centennial Commission and the 68
 People v. Cayat, 68 Phil. 12, 17 [1939].
Supreme Court in 1997, p. 103, citing Perfecto V. Fernandez, Customs Laws in
Pre-Conquest Philippines, UP Law Center, p. 10 [1976].  Id. at 17, citing the Decree of the Governor-General of the Philippines, Jan. 14,
69

1887.
55
 Agoncillo, supra, at 41.
70
 Agoncillo, supra, at 80.
56
 Amelia Alonzo, The History of the Judicial System in the Philippines,
Indigenous Era Prior to 1565, unpublished work submitted as entry to the 71
 Id. at 80.
Centennial Essay-Writing Contest sponsored by the National Centennial
Commission and the Supreme Court in 1997. 72
 Corpuz, supra, at 277-278.
73
 Id. at 277. 87
 The construction of the Ambuklao and Binga dams in the 1950’s resulted in
the eviction of hundreds of Ibaloi families – Cerilo Rico S. Abelardo, Ancestral
 Id., N.B. But see discussion in Cariño v. Insular Government, infra, where the
74 Domain Rights: Issues, Responses, and Recommendations, Ateneo Law
United States Supreme Court found that the Spanish decrees in the Philippines Journal, vol. 38, No. 1, p. 92 [1993].
appeared to recognize that the natives owned some land. Whether in the
implementation of these decrees the natives’ ancestral rights to land 88
 Section 11, Art. XV, 1973 Constitution.
were actually respected was not discussed by the U.S. Supreme Court;
see also Note 131, infra. 89
 Presidential Decrees Nos. 1017 and 1414.
75
 Tan, supra, at 49-50.  The PANAMIN, however, concentrated funds and resources on image-
90

building, publicity, and impact projects. In Mindanao, the agency resorted to a

76
 Id. at 67. policy of forced resettlement on reservations, militarization and intimidation-
MacDonald, Indigenous Peoples of the Philippines, supra, at 349-350.
77
 Id. at 52-53.
91
 No occupancy certificates were issued, however, because the government
78
 Id. at 53. failed to release the decree’s implementing rules and regulations-
Abelardo, supra, at 120-121.
79
 Id. at 55.
92
 Id., Note 177.
80
 People v. Cayat, 68 Phil. 12, 17 [1939].
93
 Id., at 93-94.
 Memorandum of the Secretary of the Interior, quoted in Rubi v. Provincial
81

Board of Mindoro, 39 Phil. 660, 714 [1919]; also cited in People v. Cayat, supra,
94
 MacDonald, Indigenous People of the Philippines, supra, at 351.
at 17-18.
95
 E.O. Nos. 122-A, 122-B and 122-C. The preamble of E.O. No. 122-B states:
82
 Rubi v. Provincial Board of Mindoro, supra, at 693.
"Believing that the new government is committed to formulate more vigorous
83
 Charles Macdonald, Indigenous Peoples of the Philippines: Between policies, plans, programs, and projects for tribal Filipinos, otherwise known as
Segregation and Integration, Indigenous Peoples of Asia, p. 348, ed. by R.H. Indigenous Cultural Communities, taking into consideration their communal
Barnes, A. Gray and B. Kingsburry, pub. by Association for Asian Studies aspirations, customs, traditions, beliefs, and interests, in order to promote and
[1995]. The BNCT made a Bontok and subanon ethnography, a history of Sulu preserve their rich cultural heritage and insure their participation in the country’s
genealogy, and a compilation on unhispanized peoples in northern Luzon.— development for national unity; xxx"
Owen J. Lynch, Jr., The Philippine Colonial Dichotomy: Attraction and
Disenfranchisement, 63 P. L. J. 139-140 [1988].  Article II, sec. 22; Article VI, sec. 5, par. 2; Article XII, sec. 5; Article XIII, sec.
96

6; Article XIV, sec. 17; and Article XVI, sec. 12.

84
 R.A. No. 1888 of 1957.
97
 MacDonald, Indigenous Peoples of the Philippines, supra, at 345.
 See People v. Cayat, supra, at 21; See also Rubi v. Provincial Board of
85

Mindoro, 39 Phil. 660, 694 [1919] 98

 Samuel K. Tan, A History of the Philippines, p. 54 [1997].

86
 MacDonald, Indigenous Peoples of the Philippines, supra, at 351.
  Cordillera Studies Program, Land Use and Ownership and Public Policy in the
99 111
 Id. at 13.
Cordillera, 29-30 [n.d.]; also cited in Dante B. Gatmaytan, Ancestral Domain
Recognition in the Philippines: Trends in Jurisprudence and Legislation, 5 Phil.  Journal of the Tenth Congress of the Philippines, Senate, Session No. 5, Aug.
112

Nat. Res. L.J. No. 1, pp. 47-48 [1992]. 5-6, 1997, pp. 86-87.

 Abelardo, Ancestral Domain Rights, supra, at 98-99, citing Ponciano L.

100
 Co-authors of the bill were Reps. Ermita, Teves, Plaza, Calalay, Recto, Fua,
113

Bennagen, Indigenous Attitudes Toward Land and Natural Resources of Tribal Luciano, Abad, Cosalan, Aumentado, de la Cruz, Bautista, Singson, Damasing,
Filipinos, 31 National Council of Churches in the Philippines Newsletter, Oct.- Romualdo, Montilla, Germino, Verceles—Proceedings of Sept. 4, 1997, pp.
Dec. 1991, at 4-9. 00107-00108.

 Id. at 99, citing June Prill-Brett, Bontok Land Tenure (UP Law library,
101
 Sponsorship speech of Rep. Andolana of House Bill No. 9125, March 20,
114

mimeographed). 1997.

 Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface of National

102 115
 Interpellation of Aug. 20, 1997, 6:16 p.m., p. 00061.
Land Law and Kalinga Law, 58 P.L.J. 420, 440-441 [1983].
116
 Section 3 [a], IPRA.
103
 Ibid.
117
 Section 3 [b], IPRA.
104
 Ibid.
118
 Guide to R.A. 8371, p. 14.
105
 Ibid.
119
 Section 44 [e], IPRA.
106
 Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface, supra, at 420.
120
 Section 51, IPRA.
 Senate Bill No. 1728 was co-sponsored by Senator Macapagal-Arroyo and
107

co-authored by Senators Alvarez, Magsaysay, Revilla, Mercado, Enrile, 121

 Guide to R.A. 8371, p. 15.
Honasan, Tatad, Maceda, Shahani, Osmena and Romulo.
 A CADT refers to a title formally recognizing the right of possession and
122

The Eighth Congress, through Senators Rasul, Estrada and Romulo filed a bill ownership of ICCs/IPs over their ancestral domains identified and delineated in
to operationalize the mandate of the 1987 Constitution on indigenous peoples. acordance with the IPRA—Rule II [c], Rules & Regulations Implementing the
The bill was reported out, sponsored an interpellated but never enacted into law. IPRA, NCIP Admin. Order No. 1.
In the Ninth Congress, the bill filed by Senators Rasul and Macapagal-Arroyo
was never sponsored and deliberated upon in the floor. 123
 Section 53 [a], IPRA.
 Sponsorship Speech of Senator Flavier, Legislative History of SBN 1728,
108
 A CALT refers to a title formally recognizing the rights of the ICCs/IPs over
124
Tenth Congress, Second Regular Session, Senate, Oct. 16, 1996, pp. 15-16.
their ancestral lands- Rule II [d], Implementing Rules, NCIP A.O. No. 1.
109
 Id. at 12. 125
 Section 52 [k], IPRA.
110
 Id. at 17-18. 126
 Section 3 [1], IPRA.
127
 Section 11, IPRA. Aranal-Sereno and Libarios, The Interface Between Kalinga Land Law,
142

supra at 428-This artcile was one of those circulated among the Constitutional
128
 Ibid. Commissioners in the formulation of Sec. 5, Article XII of the 1987 Constitution
(4 Record of the Constitutional Commission 33).
129
 41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed. 594.
143
Id. at 944.
 Sponsorship Speech of Senator Juan Flavier, Leg. History of SBN 1728,
130

Tenth Congress, Second Regular Session, Oct. 16, 1996, p. 13. Certificate of Title No. 2 covering the 148 hectares of Baguio Municipality was
144

issued not in the name of Cariño who died on June 6, 1908, but to his lawyers
 It was the practice of the Spanish colonial government not to issue titles to
131 John Hausserman and Charles Cohn and his attorney-in-fact Metcalf Clarke.
Igorots—Owen J. Lynch, Jr., Invisible Peoples and a Hidden Agenda: The Hausserman, Cohn and Clarke sold the land to the U.S. Government in a Deed
Origins of Contemporary Philippine Land Laws (1900-1913), 63 P.L.J. 249, 288 of Quitclaim-Richel B. Langit, Igorot Descendants Claim Rights to Camp John
[1988], citing the testimony of Benguet Provincial Governnor William F. Pack, Hay, Manila Times, p. 1, Jan. 12, 1998.
Records at 47, Cariño.
145
Id. at 939.
132
 Maura Law or the Royal Decree of Feb. 13, 1894.
146
57 P.L.J. 268, 293-296 [1982].
133
 Later named Camp John Hay.
From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish parts of his
147

134
 Lynch, Invisible Peoples, supra, at 288-289. doctoral dissertation at the Yale Law School entitled "Invisible Peoples: A
History of Philippine Land Law." Please see the Legal Bases of Philippine
Colonial Sovereignty: An Inquiry, 62 P.L.J. 279 [1987]; Land Rights, Land Laws
135
 7 Phil. 132 [1906].
and Land Usurpation: The Spanish Era (1568-1898), 63 P.L.J. 82 [1988]; The
Colonial Dichotomy: Attraction and Disenfranchisement, 63 P.L.J. 112; Invisible
 In 1901, Cariño had entered into a promissory agreement with a U.S.
136
Peoples and a Hidden Agenda: The Origins of Contemporary Philippine Land
merchant in Manila. The note obliged Cariño to sell the land at issue "as soon as Laws (1900-1913), 63 P.L.J. 249.
he obtains from the Government of the United States, or its representatives in
the Philippines, real and definitive title." See Lynch, Invisible Peoples, supra, at
"Native title" is a common law recognition of pre-existing aboriginal land
148
290, citing Government’s Exhibit G, Records, at 137-138, Cariño.
interests in Autsralia- Maureen Tehan, Customary Title, Heritage Protection, and
Property Rights in Australia: Emerging Patterns of Land Use in the Post-Mabo
137
 Cariño v. Insular Government, supra, at 939. Era, 7 Pacific Rim Law & Policy Journal, No. 3, p. 765 [June 1998].
138
Ibid. 149
Lynch, Native Titles, supra, Note 164, p. 293.
139
Id. at 940. 150
39 Phil. 660 [1919].
140
Id. at 941. 151
Id. at 712-713.
141
Id. at 941-942. 152
Id. at 694.

153
Id. at 700.
154
42 C.J.S., Indians, Sec. 29 [1944 ed.]. Lynch, Native Title, supra, at 293-294; Cohen, Original Indian Title, 32 Minn.
164

L.R. 48-49 [1947].

There are 3 kinds of Indian reservations: (a) those created by treaties prior to
155

1871; (b) those created by acts of Congress since 1871; and (c) those made by 165
6 Pet 515, 8 L.Ed. 483 [1832].
Executive Orders where the President has set apart public lands for the use of
the Indians in order to keep them within a certain territory- 42 C.J.S., Indians, 166
Id. at 499.
Sec. 29 citing Sioux Tribe of Indians v. U.S. 94 Ct. Cl. 150, 170, certiorari
granted 62 S. Ct. 631, 315 U.S. 790, 86 L. Ed. 1194, affirmed 62 S. Ct. 1095, 167
Id. at 500.
316 U.S. 317, 86 L. Ed. 1501. It is observed that the first two kinds may
include lands possessed by aboriginal title. The last kind covers Indian 168
Id. at 501.
reservations proper.
The title of the government to Indian lands, the naked fee, is a sovereign title,
169
Until 1871, Indian tribes were recognized by the United States as possessing
the government having no landlord from whom it holds the fee- Shoshone Tribe
the attributes of nations to the extent that treaties were made with them. In that
of Indians of Wind River Reservation in Wyoming v. U.S., 85 Ct. Cl.
year, however, Congress, by statute, declared its intention thereafter to make
331, certiorari granted U.S. v. Shoshone Tribe of Indians, 58 S. Ct. 609, 303
the Indian tribes amenable directly to the power and authority of the United
U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct. 794, 304 U.S. 111, 82 L. Ed. 1213,
States by the immediate exercise of its legislative power over them, instead of
1218-1219 [1938].
by treaty. Since then, Indian affairs have been regulated by acts if Congress and
by contracts with the Indian tribes practically amounting to treaties- 41 Am Jur
2d, Indians, Sec. 55 [1995 ed]. Buttz v. Northern Pac. R. Co., Dak., at 30 L. Ed. 330, 335; Beecher v.
170

Wetherby, Wis., 95 U.S. 517, 24 L. Ed. 440, 441 [1877]; see also 42 C.J.S.,
Indians, Sec. 28 [1944 ed.].
156
42 C.J.S. Indians, Sec. 28 [1944 ed.].
Annotation, Proof and Extinguishment of Aboriginal title to Indian Lands, 41
171
Ibid.; see also U.S. v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct. 248, 314 U.S. 339,
157
ALR Fed 425, Sec. 2 [b] [1979]- hereinafter cited as Aboriginal Title to Indian
86 L. Ed. 260 [1941].
Lands.
158
Ibid.
Ibid.; see also Tee Hit Ton Indians v. U.S., 348 U.S. 272, 99 L. Ed. 314, 320,
172

75 S. Ct. 313 [1955], reh den 348 U.S. 965, 99 L. Ed. 753, 75 S. Ct. 521.
159
8 Wheat 543, 5 L. Ed. 681 [1823].
173
Ibid.; Tee Hit Ton Indians v. U.S., at 99 L. Ed. 320.
160
Id. at 680.
Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73, 94
174
161
Id. at 689. S Ct. 772 [1974]; U.S. v. Alcea Bank of Tillamooks, 329 U.S. 40, 91 L. Ed. 29.
67 S. Ct. 167 [1946].
Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and Extinguishment of
162

Aboriginal Title to Indian Lands, Sec. 2[a] [1979]. For compensation under the Indian Claims Commission Act, the proof of
175

aboriginal title rests on actual, exclusive and continuous use and occupancy for
Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55, 30 L. Ed. 330,
163
a long time prior to the loss of the property. (The Indian Claims Commission Act
335 [1886]. awards compensation to Indians whose aboriginal titles were extinguished by
the government through military conquest, creation of a reservation, forced
confinement of Indians and removal of Indians from certain portions of the land
an the designation of Indian land into forest preserve, grazing district, etc.) D. Gatmaytan, supra, citing Churchill, The Earth is Our Mother: Struggles for
186

- Aboriginal Title to Indian Lands, supra, at Secs. 2[a], 3[a], pp. 431, 433, 437. American Indian Land and Liberation in the Contemporary United States, The
State of Native America: Genocide, Colonization and Resistance 139 (M.
176
Aboriginal Title to Indian Lands, supra, at Sec. 2[b], p. 435. Jaimes 1992); and Indian Law Resource Center, United States Denial of Indian
Property Rights: A Study in Lawless Power and Racial Discrimination,
177
41 Am Jr 2d, Indians, Sec. 59 [1995 ed.]. Rethinking Indian Law 15 (National Lawyers Guild, Committee on Native
American Struggles 1982).
An allotment of Indian land contains restrictions on alienation of the land.
178

These restrictions extend to a devise of the land by will- Missouri, K. & T.R. Id., Note 28, stating that some earlier decisions of the U.S. Supreme Court
187

Co. v. U.S., 235 U.S. 37, 59 L. Ed. 116,. 35 S. Ct. 6 [1914]; A railroad land grant have held that Congress is subject to the strictures of the Constitution in dealing
that falls within Indian land is null and void- Northern P. R. Co. v. U.S., 227 U.S. with Indians. When an Indian property is taken for non-Indian use, the U.S.
355, 57 L.Ed. 544,33 S. Ct. 368 [1913]; Portions of Indian land necessary for a government is liable for payment of compensation, and an uncompensated
railroad right of way were, by the terms of the treaty, declared "public land," taking may be enjoined. F. Cohen, Handbook of Federal Indian Law 217 [1982],
implying that land beyond the right of way was private- Kindred v. Union P.R. citing Shoshone Tribe v. U.S. 299 U.S. 476 [1937]; Choate v. Trapp, 224 U.S.
Co., 225 U.S. 582, 56 L. Ed. 1216, 32 S. Ct. 780 [1912]; see also 41 Am Jur 2d, 665 [1912]; and Lane v. Pueblo of Santa Rosa, 249 U.S. 110 [1919].
Indians, Sec. 58 [1995 ed].
188
See Discussion, infra, Part IV (c) (2).
179
Aboriginal Title to Indian Lands, supra, at Sec. 2[a], p. 433.
189
Susi v. Razon, 48 Phil. 424 [1925]; Herico v. Dar, 95 SCRA 437 [1980].
180
42 C.J.S. Indians, Sec. 29 [1944 ed.]
190
Ibid.
181
Ibid.
Director of Lands v. Intermediate Appellate Court, 146 SCRA 509 [1986];
191

182
North American Indians have made much progress in establishing a Director of Lands v. Buyco, 216 SCRA 78 [1992]; Republic v. Court of Appeals
relationship with the national government and developing their own laws. Some and Lapina, 235 SCRA 567 [1994].
have their own government-recognized constitutions. Usually the recognition of
Indian tribes depends on whether the tribe has a reservation. North American
192
75 Phil. 890 [1946].
tribes have reached such an advanced stage that the main issues today evolve
around complex jurisdictional and litigation matters. Tribes have acquired the 193
Id. at 892.
status of sovereign nations within another nation, possessing the right to change
and grow- Jose Paulo Kastrup, The Internationalization of Indigenous Rights 194
Sec. 48 [b], C.A. 141.
from the Environmental and Human Rights Perspective, Texas International Law
Journal, vol. 32: 97, 104 [1997]. Sec. 48 [c], C.A. 141, as amended. This provision was added in 1964 by R.A.
195

3872.
183
Lynch, Native Title, supra, at 293.
196
Section 12, IPRA.
Dante Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends in
184

Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 43, 40 [Aug. "Time immemorial" refers "to a period of time when as far back as memory can
197

1992]; see also Tee Hit Ton Indians v. U.S., supra, at 320. go, certain ICCs/Ips are known to have occupied, possessed in the concept of
owner, and utilized a defined territory devolved to them, by operation of
185
Ibid.
customary law or inherited from their ancestors, in accordance with their 211
 Article 494, Civil Code.
customs and traditions." (Sec. 3 [p], IPRA).
 Antonio M. La Vina, Arguments for Communal Title, Part II, 2 Phil. Nat. Res.
212

198
Section 2, C.A. 141. L. J. 23 [Dec. 1989].

199
Section 8, C.A. 141. 213
 Section 11, Corporation Code.

 The classification of ancestral lands 18% in slope or over as alienable in the

200 214
 Sections 60-72, Corporation Code.
IPRA is an exception to Section 15, P.D. 705, the Revised Forestry Code.
 Section 117, Corporation Code. Please see also La Vina, Arguments for
215

 Charles MacDonald, Indigenous Peoples of the Philippines: Between

201
Communal Title, Part II, supra, at 23.
Segregation and Integration, Indigenous Peoples of Asia, supra, at pp. 345, 350.
216
 Section 5, par. 2, Article XII, 1987 Constitution.
202
 Section 5, Article XII, 1987 Constitution.
 Customary law is recognized by the Local Government Code of 1991 in
217

203
 Words in bold were amendments introduced by R.A. 3872 in 1964. solving disputes among members of the indigenous communities, viz:

 Words in bold were amendments introduced by R.A. 3872 on June 18, 1964.
204
"Sec. 412 (c) Conciliation among members of indigenous cultural communities.-
On January 25, 1977, however, Sec. 48 [b] and 48 [c] were further amended by The customs and traditions of indigenous cultural communities shall be applied
P.D. 1073 stating that these provisions on cultural minorities apply only to in settling disputes between members of the cultural communities."
alienable and disposable lands of the public domain- Please see Republic v.
CA and Paran, 201 SCRA 1, 10-11 [1991].  Law writes custom into contract-Hongkong & Shanghai Bank v. Peters, 16
218

Phil. 284 [1910].

205
 Jus utendi, jus fruendi.
The Civil Code provides:
206
 Jus abutendi.
"Art. 11. Customs which are contrary to law, public order or public policy shall
207
 Jus disponendi. not be countenanced."

 Jus vindicandi. Please see Tolentino, Civil Code, vol. II, pp. 45-46 [1992]; see
208
"Art. 12. A custom must be proved as a fact, according to the rules of evidence."
also Tolentino, vol. I, pp. 12-14.
 Article 78 on marriages between Mohammedans or pagans who live in the
219

209
 Sec. 55, IPRA provides: non-Christian provinces- this is now Art. 33 of the Family Code; Art. 118, now
Art. 74 of the Family Code on property relations between spouses; Art. 577 on
"Sec. 55. Communal rights.- Subject to Section 56 hereof, areas within the the usufructuary of woodland; Art. 657 on easement of right of way for passage
ancestral domains, whether delineated or not, shall be presumed to be of livestock; Arts. 678, 1315, 1376, 1522, 1564 and 1577. Please see Aquino,
communally held: provided, That communal rights under this Act shall not be Civil Code, vol. 1, p. 25.
construed as co-ownership as provided in Republic Act No. 386, otherwise
known as the New Civil Code."  Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In Re: Firm Name of
220

Ozaeta Romulo, 92 SCRA 1 [1979]; Yao Kee v. Sy-Gonzales, 167 SCRA 736
210
 Ibid. [1988]; Please see Aquino, Civil Code, vol. 1, p. 26 for a list of other cases.
  This situation is analogous to the Muslim code or the Code of Muslim
221
 In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988],
231

Personal Laws (P.D. 1083) which took effect on February 4, 1977 despite the Cruz, J., ponente, it was declared that if a person is the owner of a piece of
effectivity of the Civil Code and the Family Code. P.D. 1083 governs persons, agricultural land on which minerals are discovered, his ownership of such land
family relations and succession among Muslims, the adjudication and settlement does not give him the right to extract or utilize the said minerals without the
of disputes, the organization of the Shari’a courts, etc. permission of the State to which such minerals belong- also cited in H. de Leon,
Phil. Constitutional Law, Principles and Cases, vol. 2, pp. 800-801 [1999].
 Mariflor P. Pagusara, The Kalinga Ili: Cultural-Ecological Reflections on
222

Indigenous Theora and Praxis of Man-Nature Relationship, Dakami Ya Nan 232

 See Ground I, Grounds to Issue Writ of Prohibition, Petition, p. 14.
Dagami, p. 36, Papers and Proceedings of the 1st Cordillera Muti-Sectoral Land
Congress, 11-14 March 1983, Cordillera Consultative Committee [1984]. 233
 Section 7 (b) is subject to Section 56 of the same law which provides:
223
 Section 2, Article XII. "Sec. 56. Existing Property Rights Regimes.- Property rights within the ancestral
domains already existing and/or vested upon effectivity of this Act, shall be
 A "co-production agreement" is defined as one wherein the government
224
recognized and respected."
provides input to the mining operation other than the mineral resource- Section
26 (b), R.A. 7942, the Philippine Mining Act of 1995. The law took effect 15 days upon publication in the O.G. or in any 2 newspapers
of general circulation (Sec. 84, IPRA). The IPRA was published in the Chronicle
 A "joint venture agreement" is one where a joint-venture company is
225
and Malaya on Nov. 7, 1997.
organized by the government and the contractor with both parties having equity
shares, and the government entitled to a share in the gross output- Section 26  Section 9 of the IPRA also gives the ICCs/IPs the ff. responsibilities over their
234

(c), R.A. 7942. ancestral domains:

226
 A mineral "production-sharing agreement" is one where the government (a) Maintain Ecological Balance- To preserve, restore, and maintain a balanced
grants to the contractor the exclusive right to conduct mining operations within a ecology in the ancestral domain by protecting the flora and fauna, watershed
contract area and shares in the gross output. The contractor provides the areas, and other reserves;
financing, technology, management and personnel necessary for the
implementation of the agreement- Section 26 (a), R.A. 7942. (b) Restore Denuded Areas.- To actively initiate, undertake and participate in the
reforestation of denuded areas and other development programs and projects
227
 Section 26, R.A. 7942. subject to just and reasonable renumeration;
228
 Section 3 [d], People's Small-Scale Mining Act of 1991 (R.A. 7076) provides: (c) Observe Laws.- To observe and comply with the provisions of this Act and
the rules and regulations for its effective implementation."
"Sec. 3 [d] 'Small-scale mining contract' refers to co-production, joint venture or
mineral production sharing agreement between the State and a small-scale Section 58 of the same law also mandates that ancestral domains or portions
mining contractor for the small-scale utilization of a plot of mineral land." thereof, which are found to be necessary for critical watersheds, mangroves,
wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as
229
 Section 3 [b], R.A. 7076. determined by appropriate agencies with the full participation of the ICCs/IPs
concerned shall be maintained, managed and developed for such purposes. The
230
 NCIP Administrative Order No. 1, Series of 1998. ICCs/IPs concerned shall be given the responsibility to maintain, develop,
protect and conserve such areas with the full and effective assistance of
government agencies.
  Hector S. de Leon, Textbook on the New Philippine Constitution pp. 473-474
235
 Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the
247

[1987] citing the 1986 UP Law Constitution Project, The National Economy and International Labor Organization, and the ILO-Bilance- Asia Dep't, p. 3 [1999].
Patrimony, p. 11.
248
 Also referred to as the "Indigenous and Tribal Peoples Convention, 1989."
 Under the Small-Scale Mining Act of 1991, "small-scale mining" refers to
236

"mining activities which rely heavily on manual labor using simple implements 249
 See Introduction to ILO Convention No. 169, par. 4.
and methods and do not use explosives or heavy mining equipment"- Section 3
[b], R.A. 7076. 250
 Id., pars. 5 and 6.
237
 See infra., pp. 77-79?.  Perfecto V. Fernandez, Towards a Definition of National Policy on
251

Recognition of Ethnic Law within the Philippine Legal Order, 55 P.L.J. 383, 385
 Andrew Gray, The Indigenous Movement in Asia, Indigenous Peoples of Asia,
238
[1980].
ed. By Barnes, Gray and Kingsbury, pub. By Ass'n. for Asian Studies, at 35, 42
[1995].  Samuel K. Tan, A History of the Philippines, Manila Studies Association, Inc.
252

and the Phil. National Historical Society, Inc., p. 6 [1997].

239
 E.g. International Indian Treaty Council, World Council of IPs.
253
 Fernandez, supra, at 385, 391.
 Gray, The Indigenous Movement in Asia, supra, at 44, citing the International
240

Work Group for Indigenous Affairs, 1988.

The Lawphil Project - Arellano Law Foundation
 Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the
241

Environmental and Human Rights Perspective, 32 Texas International Law

Journal 97, 102 [1997].

 Benedict Kingsbury, "Indigenous Peoples" in International Law: A

242

Constructivist Approach to the Asian Controversy, The American Journal of

International Law, vol. 92: 414, 429 [1998].

 The World Bank supported the Chico Dam project. Due to the Kalingas'
243

opposition, the WB pulled out of the project but the conflict between the
Philippine government and the natives endured long after- Marcus Colchester,
Indigenous Peoples' Rights and Sustainable Resource Use in South and
Southeast Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72.

244
 Kingsbury, supra, at 417.

245
 Section 22, Article II, 1987 Constitution.

 Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second

246

Reading, November 20, 1996, p. 20.

 An issue of grave national interest indeed deserves a proper place in any
forum and, when it shows itself in a given judicial controversy, the rules of
procedure, like locus standi, the propriety of the specific remedy invoked,
or the principle of hierarchy of courts, that may ordinarily be raised by
party-litigants, should not be so perceived as good and inevitable
justifications for advocating timidity, let alone isolationism, by the Court.

A cardinal requirement, to which I agree, is that one who invokes the Court’s
adjudication must have a personal and substantial interest in the
dispute;1 indeed, the developing trend would require a logical nexus between
the status asserted and the claim sought to be adjudicated in order to ensure
that one is the proper and appropriate party to invoke judicial power. 2 The rule
requires a party to aptly show a personal stake in the outcome of the case or an
injury to himself that can be redressed by a favorable decision so as to warrant
his invocation of the Court’s jurisdiction and to render legally feasible the
exercise of the Court’s remedial powers in his behalf. If it were otherwise, the
exercise of that power can easily become too unwieldy by its sheer magnitude
and scope to a point that may, in no small measure, adversely affect its intended
essentiality, stability and consequentiality.

Nevertheless, where a most compelling reason exits, such as when the matter is
of transcendental importance and paramount interest to the nation, 3 the Court
must take the liberal approach that recognizes the legal standing of
nontraditional plaintiffs, such as citizens and taxpayers, to raise constitutional
issues that affect them.4 This Court thus did so in a case5 that involves the
conservation of our forests for ecological needs. Until and exact balance is
struck, the Court must accept an eclectic notion that can free itself from
the bondage of legal nicety and hold trenchant technicalities subordinate
to what may be considered to be of overriding concern.

The petition seeks a declaration by the Court of unconstitutionality of certain

provisions of Republic Act No. 8371, a law that obviously is yet incapable of
exact equation in its significance to the nation and its people now and in the
generations yet to come. Republic Act No. 8371, otherwise also known as the
Indigenous Peoples Rights Act of 1997 ("IPRA"), enacted into law in 1997 and
made effective on 22 November 1997, is apparently intended to be a legislative
response to the 1987 Constitution which recognizes the rights of indigenous
cultural communities "within the framework of national unity and
SEPARATE OPINION development"6 and commands the State, "subject to the provisions of this
Constitution and national development policies and programs," to protect
VITUG, J.: the rights of indigenous cultural communities to their ancestral lands in order to
ensure their economic, social, and cultural well-being. 7
Among the assailed provisions in IPRA is its Section 3(a) which defines title "Conservation and Utilization of Natural Resources", were derived largely
"ancestral domains" to embrace "all areas generally belonging to ICCs/IPs from the report of the Committee on Nationalization and Preservation of Lands
comprising lands, inland waters, coastal areas, and natural resources" and other Natural Resources.9 According to the Committee report, among the
including "ancestral lands, forest, pasture, residential, agricultural, and principles upon which these provisions were based, was "that the land, minerals,
other lands individually owned whether alienable and disposable or forest and other natural resources constitute the exclusive heritage of the
otherwise," over which indigenous cultural communities/indigenous Filipino Nation," and should thereby "be preserved for those under the sovereign
peoples ("ICCs/IPs") could exercise virtual ownership and control. authority of the Nation and for their posterity." 10 The delegates to the 1934
Constitutional Convention were of the unanimous view that the "policy on natural
IPRA effectively withdraws from the public domain the so-called ancestral resources, being fundamental to the nation’s survival should not be left to the
domains covering literally millions of hectares. The notion of community changing mood of the lawmaking body." 11
property would comprehend not only matters of proprietary interest but
also some forms of self-governance over the curved-out territory. This The 1987 Constitution, like the precursor provisions in the 1935 and 1973
concept is elaborated in Section 7 of the law which states that the "rights of Constitutions, thus expresses this regalian doctrine of the old, and the domainial
ownership and possession of ICCs/IPs to their ancestral domains shall be doctrine of the new, that all lands and natural resources belong to the state other
recognized and protected," subsumed under which would encompass the right than those which it recognizes to be of private ownership. Except for
of ownership (paragraph a); the right to develop, control and use lands and agricultural lands of the public domain which alone may be alienated,
natural resources, including "the right to negotiate the terms and forest or timber, and mineral lands, as well as all other natural resources,
conditions for the exploration of natural resources in the areas for the of the country must remain with the state, the exploration, development
purpose of ensuring ecological, environmental protection and the conservation and utilization of which shall be subject to its full control and
measures, pursuant to national and customary laws;" (par. b); the right to stay supervision albeit allowing it to enter into co-production, joint venture or
in the territories (par. c); the right to return to their abandoned lands in production-sharing agreements, or into agreements with foreign-owned
case of displacement (par. d); the right to regulate entry of migrants (par. corporations involving technical or financial assistance for large-scale
e); the right to claim parts of ancestral domains previously reserved (par. exploration, development and utilization. 12
g); and the right to resolve land conflicts in accordance primarily with
customary law (par. h). Concurrently, Section 57 states that ICCs/IPs shall be The decision of the United States Supreme Court in Cariño vs. Insular
given "priority rights in the harvesting, extraction, development or exploitation of Government,13 holding that a parcel of land held since time immemorial by
any natural resources within the ancestral domains." These provisions of individuals under a claim of private ownership is presumed never to have been
IPRA, in their totality, are, in my view, beyond the context of the public land and cited to downgrade the application of the regalian doctrine,
fundamental law and virtually amount to an undue delegation, if not an cannot override the collective will of the people expressed in the Constitution.
unacceptable abdication, of State authority over a significant area of the It is in them that sovereignty resides and from them that all government authority
country and its patrimony. emanates.14 It is not then for a court ruling or any piece of legislation to be
conformed to by the fundamental law, but it is for the former to adapt to the
Article XII of the 1987 Constitution expresses that all "lands of the public latter, and it is the sovereign act that must, between them, stand inviolate.
domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forest or timber, wildlife, flora and The second paragraph of Section 5 of Article XII of the Constitution allows
fauna, and other natural resources are owned by the State," and, with the Congress to provide "for the applicability of customary laws governing property
exception of agricultural lands, "shall not be alienated." It ordains that the rights or relations in determining the ownership and extent of ancestral
"exploration, development, and utilization of natural resources shall be domains." I do not see this statement as saying that Congress may enact a law
under the full control and supervision of the State."8 that would simply express that "customary laws shall govern" and end it there.
Had it been so, the Constitution could have itself easily provided without having
These provisions had roots in the 1935 Constitution which, along with some to still commission Congress to do it. Mr. Chief Justice Davide has explained this
other specific mandates in the 1935 Constitution, forming Article XII under the
authority of Congress, during the deliberations of the 1986 Constitutional  Legaspi vs. Civil Service Commission, 150 SCRA 530, 540; Tañada vs.
3

Convention, thus: Tuvera, 136 SCRA 27, 36, 37.

"Mr. Davide. x x x Insofar as the application of the customary laws governing 4

 Defensor Santiago, Miriam, Constitutional Law, First Edition, 1994, p. 11; see
property rights or relations in determining the ownership and extent of the also Rev. Fr. Joaquin Bernas, S.J., on the 1987 Constitution of the Republic of
ancestral domain is concerned, it is respectfully submitted that the particular the Philippines, 1996 Ed., pp. 336-337.
matter must be submitted to Congress. I understand that the idea of Comm.
Bennagen is for the possibility of the codification of these customary laws. So 5
 Oposa vs. Factoran, Jr., 224 SCRA 792.
before these are codified, we cannot now mandate that the same must
immediately be applicable. We leave it to Congress to determine the extent of 6
 Art. 11, Sec. 22.
the ancestral domain and the ownership thereof in relation to whatever may
have been codified earlier. So, in short, let us not put the cart ahead of the 7
 Art. XII, Sec. 5.
horse."15
8
 Sec. 2.
The constitutional aim, it seems to me, is to get Congress to look closely
into the customary laws and, with specificity and by proper recitals, to hew
them to, and make them part of, the stream of laws. The "due process
9
 II Aruego, The Framing of the Philippine Constitution, p. 594.
clause," as I so understand it in Tanada vs. Tuvera16 would require an apt
publication of a legislative enactment before it is permitted to take force and
10
 Ibid., p. 595.
effect. So, also, customary laws, when specifically enacted to become part of
statutory law, must first undergo that publication to render them correspondingly 11
 Ibid., p. 600.
binding and effective as such.
 CONST., Art. XII, Sec. 2; Miners Association of the Philippines, Inc., vs.
12

Undoubtedly, IPRA has several good points, and I would respectfully urge Factoran, Jr., 240 SCRA 100.
Congress to re-examine the law. Indeed, the State is exhorted to protect
the rights of indigenous cultural communities to their ancestral lands, a 13
 41 Phil. 935.
task that would entail a balancing of interest between their specific needs
and the imperatives of national interest. 14
 CONST., Art. II, Sec. 1.

WHEREFORE, I vote to grant the petition. 15

 4 Record of the Constitutional Commission 32.

16
 146 SCRA 446.

Footnotes
The Lawphil Project - Arellano Law Foundation
1
 People vs. Vera, 65 Phil. 56, 89; Macasiano vs. National Housing Authority,
224 SCRA 236, 244.

2
 Am Jur § 189, p. 591, S. vD., 410 US 641, 35 L Ed 2d 536, 93 S Ct 1146.
 You ask if we own the land. . . How can you own that which will outlive you?
Only the race own the land because only the race lives forever. To claim a piece
of land is a birthright of every man. The lowly animals claim their place; how
much more man? Man is born to live. Apu Kabunian, lord of us all, gave us life
and placed us in the world to live human lives. And where shall we obtain life?
From the land. To work (the land) is an obligation, not merely a right. In tilling the
land, you possess it. And so land is a grace that must be nurtured. To enrich it
and make it fructify is the eternal exhortation of Apu Kabunian to all his children.
Land is sacred. Land is beloved. From its womb springs …life.

- Macli-ing Dulag, Chieftain of the Kalinga Tribe (quoted in Ponciano L.

Bennagen, "Tribal Filipinos" in Indigenous View of Land and the Environment,
ed. Shelton H. Davis, the World Bank Discussion Papers, No. 188, pp. 71-72.)

It is established doctrine that a statute should be construed whenever possible

in harmony with, rather than in violation of, the Constitution. 1 The presumption is
that the legislature intended to enact a valid, sensible and just law and one
which operates no further than may be necessary to effectuate the specific
purpose of the law.2

The challenged provisions of the Indigenous Peoples Rights Act (IPRA) must be
construed in view of such presumption of constitutionality. Further, the
interpretation of these provisions should take into account the purpose of the
law, which is to give life to the constitutional mandate that the rights of the
indigenous peoples be recognized and protected.

The struggle of our indigenous peoples to reclaim their ancestral lands and
domains and therefore, their heritage, is not unique. It is one that they share with
the red-skinned "Indians" of the United States, with the aborigines of Australia,
the Maori of New Zealand and the Sazmi of Sweden, to name a few. Happily,
the nations in which these indigenous peoples live all have enacted measures in
an attempt to heal an oppressive past by the promise of a progressive future.
Thus has the international community realized the injustices that have been
perpetrated upon the indigenous peoples. This sentiment among the family of
nations is expressed in a number of documents, the most recent and most
comprehensive of which is the Draft United Nations Declaration on the Rights of
Indigenous Peoples which was adopted by the UN Sub-Commission on
Prevention of Discrimination and Protection of Minorities by its resolution on
SEPARATE OPINION August 26, 1994. Among the rights recognized by the UN Draft is the restitution
of lands, territories and even the resources which the indigenous peoples have
KAPUNAN, J.: traditionally owned or otherwise occupied or used, and which have been
confiscated, occupied, used or damaged without the free and informed consent (f) Other relevant facts.6
of the indigenous peoples.
In Philippine constitutional law, the term "indigenous peoples" pertains to those
A Historical Backdrop on the Indigenous Peoples groups of Filipinos who have retained a high degree of continuity from pre-
Conquest culture.7 Philippine legal history, however, has not been kind to the
The term "indigenous" traces its origin to the Old Latin word indu, meaning indigenous peoples, characterized them as "uncivilized," 8 "backward
"within." In the sense the term has come to be used, it is nearer in meaning to people,"9 with "barbarous practices"10 and "a low order of intelligence." 11
the Latin word indigenus, which means "native."3 "Indigenous" refers to that
which originated or has been produced naturally in a particular land, and has not Drawing inspiration from both our fundamental law and international law, IPRA
been introduced from the outside. 4 In international law, the definition of what now employs the politically-correct conjunctive term "indigenous
constitutes "indigenous peoples" attains some degree of controversy. No peoples/indigenous cultural communities" as follows:
definition of the term "indigenous peoples" has been adopted by the United
Nations (UN), although UN practice has been guided by a working definition in Sec. 3. Definition of Terms.- For purposes of this Act, the following terms shall
the 1986 Report of UN Special Rapporteur Martinez Cobo: 5 mean:

Indigenous communities, peoples and nations are those which, having a xxx
historical continuity with pre-invasion and pre-colonial societies that developed
on their territories, consider themselves distinct from other sections of the (h) Indigenous peoples/Indigenous cultural communities. - refer to a group of
societies now prevailing in those territories, or parts of them. They form at people or homogenous societies identified by self-ascription and ascription by
present non-dominant sections of society and are determined to preserve, others, who have continuously lived as organized community on communally
develop and transmit to future generations their ancestral territories, and their bounded and defined territory, and who have, under claims of ownership since
ethnic identity, as the basis of their continued existence as peoples, in time immemorial, occupied, possessed and utilized such territories, sharing
accordance with their own cultural patterns, social institutions and legal systems. common bonds of language, customs, traditions, and other distinctive cultural
traits, or who have, through resistance to political, social and cultural inroads of
This historical continuity may consist of the continuation, for an extended period colonization, non-indigenous religions and cultures, became historically
reaching into the present, of one or more of the following factors: differentiated from the majority of Filipinos. Indigenous peoples shall likewise
include peoples who are regarded as indigenous on account of their descent
(a) Occupation of ancestral lands, or at least of part of them; from the populations which inhabited the country at the time of conquest or
colonization, or at the time of inroads of non-indigenous religions and cultures,
(b) Common ancestry with the original occupants of these lands; or the establishment of present State boundaries, who retain some or all of their
own social, economic, cultural and political institutions, but who may have been
(c) Culture in general, or in specific manifestations (such as religion, living under displaced from their traditional domains or who may have resettled outside their
a tribal system, membership of an indigenous community, dress, means of ancestral domains x x x.
livelihood, life-style, etc.);
Long before the Spaniards set foot in these islands, the indigenous peoples
(d) Language (whether used as the only language, as mother-tongue, as the were already plowing our soil and hunting in our forests. The Filipinos of Aeta
habitual means of communication at home or in the family, or as the main, and Malay stock, who were the original inhabitants of our archipelago, were, at
preferred, habitual, general or normal language); that time, practicing a native culture. From the time the Spaniards arrived up to
the early part of the American regime, 12 these native inhabitants resisted foreign
invasion, relentlessly fighting for their lands. Today, from the remote uplands of
(e) Residence in certain parts of the country; or in certain regions of the world;
Northern Luzon, to Palawan, Mindoro and Mindanao, the indigenous peoples
continue to live on and cultivate their ancestral lands, the lands of their The Congress may provide for the applicability of customary laws governing
forefathers. property rights and relations in determining the ownership and extent of
ancestral domains.18
Though Filipinos today are essentially of the same stock as the indigenous
peoples, our national culture exhibits only the last vestiges of this native culture. Sec. 1. The Congress shall give the highest priority to the enactment of
Centuries of colonial rule and neocolonial domination have created a discernible measures that protect and enhance the right of all the people to human dignity,
distinction between the cultural majority and the group of cultural reduce social, economic and political inequalities, and remove cultural inequities
minorities.13 The extant Philippine national culture is the culture of the majority; by equitably diffusing wealth and political power for the common good.
its indigenous roots were replaced by foreign cultural elements that are
decidedly pronounced, if not dominant. 14 While the culture of the majority To this end, the State shall regulate the acquisition, ownership, use and
reoriented itself to Western influence, the culture of the minorities has retained disposition of property and its increments.19
its essentially native character.
Sec. 6. The State shall apply the principles of agrarian reform or stewardship,
One of every six Filipinos is a member of an indigenous cultural community. whenever applicable in accordance with law, in the disposition and utilization of
Around twelve million Filipinos are members of the one hundred and ten or so other natural resources, including lands of the public domain under lease or
indigenous cultural communities,15 accounting for more than seventeen per concession, subject to prior rights, homestead rights of small settlers, and the
centum of the estimated seventy million Filipinos 16 in our country. Sadly, the rights of indigenous communities to their ancestral lands. 20
indigenous peoples are one of the poorest sectors of Philippine society. The
incidence of poverty and malnutrition among them is significantly higher than the Sec. 17. The State shall recognize, respect, and protect the rights of indigenous
national average. The indigenous peoples are also among the most powerless. cultural communities to preserve and develop their cultures, traditions, and
Perhaps because of their inability to speak the language of law and power, they institutions. It shall consider these rights in the formulation of national plans and
have been relegated to the fringes of society. They have little, if any, voice in policies.21
national politics and enjoy the least protection from economic exploitation.
Sec. 12. The Congress may create a consultative body to advise the President
The Constitutional Policies on Indigenous Peoples on policies affecting indigenous cultural communities, the majority of the
members of which shall come from such communities.22
The framers of the 1987 Constitution, looking back to the long destitution of our
less fortunate brothers, fittingly saw the historic opportunity to actualize the IPRA was enacted precisely to implement the foregoing constitutional
ideals of people empowerment and social justice, and to reach out particularly to provisions. It provides, among others, that the State shall recognize and
the marginalized sectors of society, including the indigenous peoples. They promote the rights of indigenous peoples within the framework of national unity
incorporated in the fundamental law several provisions recognizing and and development, protect their rights over the ancestral lands and ancestral
protecting the rights and interests of the indigenous peoples, to wit: domains and recognize the applicability of customary laws governing property
rights or relations in determining the ownership and extent of the ancestral
Sec. 22. The State recognizes and promotes the rights of indigenous peoples domains.23 Moreover, IPRA enumerates the civil and political rights of the
within the framework of national unity and development. 17 indigenous peoples;24 spells out their social and cultural rights; 25 acknowledges a
general concept of indigenous property right and recognizes title thereto; 26 and
Sec. 5. The State, subject to the provisions of this Constitution and national creates the NCIP as an independent agency under the Office of the President. 27
development policies and programs, shall protect the rights of indigenous
cultural communities to their ancestral lands to ensure their economic, social, Preliminary Issues
and cultural well-being.
A. The petition presents an actual controversy.
The time-tested standards for the exercise of judicial review are: (1) the its enforcement.35 Evidently, the rights asserted by petitioners as citizens and
existence of an appropriate case; (2) an interest personal and substantial by the taxpayers are held in common by all the citizens, the violation of which may
party raising the constitutional question; (3) the plea that the function be result only in a "generalized grievance". 36 Yet, in a sense, all citizen’s and
exercised at the earliest opportunity; and (4) the necessity that the constitutional taxpayer’s suits are efforts to air generalized grievances about the conduct of
question be passed upon in order to decide the case.28 government and the allocation of power.37

Courts can only decide actual controversies, not hypothetical questions or In several cases, the Court has adopted a liberal attitude with regard to
cases.29 The threshold issue, therefore, is whether an "appropriate case" exists standing.38 The proper party requirement is considered as merely
for the exercise of judicial review in the present case. procedural,39 and the Court has ample discretion with regard thereto. 40 As early
as 1910, the Court in the case of Severino vs. Governor General 41 held:
An "actual case or controversy" means an existing case or controversy which is
both ripe for resolution and susceptible of judicial determination, and that which x x x When the relief is sought merely for the protection of private rights, the
is not conjectural or anticipatory, 30 or that which seeks to resolve hypothetical or relator must show some personal or special interest in the subject matter, since
feigned constitutional problems.31 A petition raising a constitutional question he is regarded as the real party in interest and his right must clearly appear.
does not present an "actual controversy," unless it alleges a legal right or power. Upon the other hand, when the question is one of public right and the object
Moreover, it must show that a conflict of rights exists, for inherent in the term of the mandamus is to procure the enforcement of a public duty, the people are
"controversy" is the presence of opposing views or contentions. 32 Otherwise, the regarded as the real party in interest, and the relator at whose instigation
Court will be forced to resolve issues which remain unfocused because they lack the proceedings are instituted need not show that he has any legal or
such concreteness provided when a question emerges precisely framed from a special interest in the result, it being sufficient to show that he is a citizen
clash of adversary arguments exploring every aspect of a multi-faceted situation and as such interested in the execution of the laws.42
embracing conflicting and demanding interests. 33 The controversy must also be
justiciable; that is, it must be susceptible of judicial determination. 34 This Court has recognized that a "public right," or that which belongs to the
people at large, may also be the subject of an actual case or controversy.
In the case at bar, there exists a live controversy involving a clash of legal rights. In Severino, we ruled that a private citizen may enforce a "public right" in behalf
A law has been enacted, and the Implementing Rules and Regulations of other citizens. We opined therein that:
approved. Money has been appropriated and the government agencies
concerned have been directed to implement the statute. It cannot be … The right which [petitioner] seeks to enforce is not greater or different from
successfully maintained that we should await the adverse consequences of the that of any other qualified elector in the municipality of Silay. It is also true that
law in order to consider the controversy actual and ripe for judicial resolution. It the injury which he would suffer in case he fails to obtain the relief sought would
is precisely the contention of the petitioners that the law, on its face, constitutes not be greater or different from that of the other electors; but he is seeking to
an unconstitutional abdication of State ownership over lands of the public enforce a public right as distinguished from a private right. The real party in
domain and other natural resources. Moreover, when the State machinery is set interest is the public, or the qualified electors of the town of Silay. Each
into motion to implement an alleged unconstitutional statute, this Court elector has the same right and would suffer the same injury. Each elector
possesses sufficient authority to resolve and prevent imminent injury and stands on the same basis with reference to maintaining a petition whether
violation of the constitutional process. or not the relief sought by the relator should be granted. 43

B. Petitioners, as citizens and taxpayers, have the requisite standing to raise the In Tañada v. Tuvera,44 the Court enforced the "public right" to due process and
constitutional questions herein. to be informed of matters of public concern.

In addition to the existence of an actual case or controversy, a person who In Garcia vs. Board of Investments, 45 the Court upheld the "public right" to be
assails the validity of a statute must have a personal and substantial interest in heard or consulted on matters of national concern.
the case, such that, he has sustained, or will sustain, a direct injury as a result of
In Oposa v. Factoran,46 the Court recognized the "public right" of citizens to "a merged as organic offices of the NCIP. 53 Thus, the IPRA is a valid subject of a
balanced and healthful ecology which, for the first time in our nation’s taxpayer’s suit.
constitutional history, is solemnly incorporated in the fundamental law." 47 Mr.
Justice (now Chief Justice) Hilario G. Davide, Jr., delivering the opinion of the C. The petition for prohibition and mandamus is not an improper remedy.
Court, stated that:
Prohibition is an extraordinary writ directed against any tribunal, corporation,
Such a right belongs to a different category of rights altogether for it concerns board, officer or person, whether exercising judicial, quasi-judicial or ministerial
nothing less than self-preservation and self-perpetuation-aptly and fittingly functions, ordering said entity or person to desist from further proceedings when
stressed by petitioners-the advancement of which may even be said to predate said proceedings are without or in excess of said entity’s or person’s jurisdiction,
all governments and constitutions. As a matter of fact, these basic rights need or are accompanied with grave abuse of discretion, and there is no appeal or
not even be written in the Constitution for they are assumed to exist from any other plain, speedy and adequate remedy in the ordinary course of
the inception of humankind.48 law.54 Mandamus, on the other hand, is an extraordinary writ commanding a
tribunal, corporation, board, officer or person, immediately or at some other
Petitioners, as citizens, possess the "public right" to ensure that the national specified time, to do the act required to be done, when said entity or person
patrimony is not alienated and diminished in violation of the Constitution. Since unlawfully neglects the performance of an act which the law specifically enjoins
the government, as the guardian of the national patrimony, holds it for the as a duty resulting from an office, trust or station, or when said entity or person
benefit of all Filipinos without distinction as to ethnicity, it follows that a citizen unlawfully excludes another from the use and enjoyment of a right or office to
has sufficient interest to maintain a suit to ensure that any grant of concessions which such other is entitled, and there is no other plain, speedy and adequate
covering the national economy and patrimony strictly complies with remedy in the ordinary course of law.55
constitutional requirements. Thus, the preservation of the integrity and
inviolability of the national patrimony is a proper subject of a citizen’s suit. In this case, the petitioners pray that respondents be restrained from
implementing the challenged provisions of the IPRA and its Implementing Rules
In addition, petitioners, as taxpayers, possess the right to restrain officials from and the assailed DENR Circular No. 2, series of 1998, and that the same
wasting public funds through the enforcement of an unconstitutional statute. It is officials be enjoined from disbursing public funds for the implementation of the
well-settled that a taxpayer has the right to enjoin public officials from wasting said law and rules. They further ask that the Secretary of the DENR be
public funds through the implementation of an unconstitutional statute, 49 and by compelled to perform his duty to control and supervise the activities pertaining to
necessity, he may assail the validity of a statute appropriating public funds. 50 The natural resources.
taxpayer has paid his taxes and contributed to the public coffers and, thus, may
inquire into the manner by which the proceeds of his taxes are spent. The Prohibition will lie to restrain the public officials concerned from implementing
expenditure by an official of the State for the purpose of administering an invalid the questioned provisions of the IPRA and from disbursing funds in connection
law constitutes a misapplication of such funds.51 therewith if the law is found to be unconstitutional. Likewise, mandamus will lie
to compel the Secretary of the DENR to perform his duty to control and
The IPRA appropriates funds as indicated in its title: "An Act to Recognize, supervise the exploration, development, utilization and conservation of the
Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous country’s natural resources. Consequently, the petition for prohibition
Peoples, Creating the National Commission on Indigenous Peoples, and mandamus is not an improper remedy for the relief sought.
Establishing Implementing Mechanisms, Appropriating Funds Therefor, and
for Other Purposes." In the same manner, Section 79 authorizes for the D. Notwithstanding the failure of petitioners to observe the hierarchy of courts,
expenditure of public funds by providing that "the amount necessary to finance the Court assumes jurisdiction over the petition in view of the importance of the
[its] initial implementation shall be charged against the current year's issues raised therein.
appropriation for the Office for Northern Cultural Communities (the "ONCC") and
the Office for Southern Cultural Communities (the "OSCC")," 52 which were Between two courts of concurrent original jurisdiction, it is the lower court that
should initially pass upon the issues of a case. That way, as a particular case
goes through the hierarchy of courts, it is shorn of all but the important legal Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and
issues or those of first impression, which are the proper subject of attention of other mineral oils, all forces of potential energy, fisheries, forests or timber,
the appellate court. This is a procedural rule borne of experience and adopted to wildlife, flora and fauna, and other natural resources are owned by the State.
improve the administration of justice. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources
This Court has consistently enjoined litigants to respect the hierarchy of courts. shall be under the full control and supervision of the State. The State may
Although this Court has concurrent jurisdiction with the Regional Trial Courts directly undertake such activities, or it may enter into co-production, joint
and the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo venture, or production-sharing agreements with Filipino citizens, or corporations
warranto, habeas corpus and injunction,56 such concurrence does not give a or associations at least sixty per centum of whose capital is owned by such
party unrestricted freedom of choice of court forum. The resort to this Court’s citizens. Such agreements may be for a period not exceeding twenty-five years,
primary jurisdiction to issue said writs shall be allowed only where the redress renewable for not more than twenty-five years, and under such terms and
desired cannot be obtained in the appropriate courts or where exceptional and conditions as may be provided by law. In cases of water rights for irrigation,
compelling circumstances justify such invocation. 57 We held in People v. water supply, fisheries, or industrial uses other than the development of water
Cuaresma58 that: power, beneficial use may be the measure and limit of the grant.

A becoming regard for judicial hierarchy most certainly indicates that petitions The State shall protect the nation’s marine wealth in its archipelagic waters,
for the issuance of extraordinary writs against first level ("inferior") courts should territorial sea, and exclusive economic zone, and reserve its use and enjoyment
be filed with the Regional Trial Court, and those against the latter, with the Court exclusively to Filipino citizens.
of Appeals. A direct invocation of the Supreme Court’s original jurisdiction
to issue these writs should be allowed only where there are special and The Congress, may, by law, allow small-scale utilization of natural resources by
important reasons therefor, clearly and specifically set out in the Filipino citizens, as well as cooperative fish farming, with priority to subsistence
petition. This is established policy. It is a policy necessary to prevent inordinate fishermen and fishworkers in rivers, lakes, bays and lagoons.
demands upon the Court’s time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further over-crowding of The President may enter into agreements with foreign-owned corporations
the Court’s docket x x x.59 (Emphasis supplied.) involving either technical or financial assistance for large-scale exploration,
development and utilization of minerals, petroleum, and other mineral oils
IPRA aims to rectify the historical injustice inflicted upon indigenous peoples. Its according to the general terms and conditions provided by law, based on real
impact upon the lives not only of the indigenous peoples but also upon the lives contributions to the economic growth and general welfare of the country. In such
of all Filipinos cannot be denied. The resolution of this case by the Court at the agreements, the State shall promote the development and use of local scientific
earliest opportunity is necessary if the aims of the law are to be achieved. This and technical resources.
reason is compelling enough to allow petitioners’ invocation of this Court’s
jurisdiction in the first instance. The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.
Substantive Issues
Under IPRA, indigenous peoples may obtain the recognition of their right of
Primary Issue ownership60 over ancestral lands and ancestral domains by virtue of native
title.61 The term "ancestral lands" under the statute refers to lands occupied by
The issue of prime concern raised by petitioners and the Solicitor General individuals, families and clans who are members of indigenous cultural
revolves around the constitutionality of certain provisions of IPRA, specifically communities, including residential lots, rice terraces or paddies, private forests,
Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 and 59. These provisions allegedly violate swidden farms and tree lots. These lands are required to have been "occupied,
Section 2, Article XII of the Constitution, which states: possessed and utilized" by them or through their ancestors "since time
immemorial, continuously to the present". 62 On the other hand, "ancestral
domains" is defined as areas generally belonging to indigenous cultural regalia which imputes to the State the ownership of all lands and makes the
communities, including ancestral lands, forests, pasture, residential and State the original source of all private titles. They argue that the Philippine State,
agricultural lands, hunting grounds, worship areas, and lands no longer as successor to Spain and the United States, is the source of any asserted right
occupied exclusively by indigenous cultural communities but to which they had of ownership in land.
traditional access, particularly the home ranges of indigenous cultural
communities who are still nomadic or shifting cultivators. Ancestral domains also Third, petitioners and the Solicitor General concede that the Cariño doctrine
include inland waters, coastal areas and natural resources therein. 63 Again, the exists. However, petitioners maintain that the doctrine merely states that title to
same are required to have been "held under a claim of ownership, occupied or lands of the public domain may be acquired by prescription. The Solicitor
possessed by ICCs/IPs, by themselves or through their ancestors, communally General, for his part, argues that the doctrine applies only to alienable lands of
or individually since time immemorial, continuously to the present". 64 Under the public domain and, thus, cannot be extended to other lands of the public
Section 56, property rights within the ancestral domains already existing and/or domain such as forest or timber, mineral lands, and national parks.
vested upon effectivity of said law "shall be recognized and respected."
Fourth, the Solicitor General asserts that even assuming that native title over
Ownership is the crux of the issue of whether the provisions of IPRA pertaining ancestral lands and ancestral domains existed by virtue of the Cariño doctrine,
to ancestral lands, ancestral domains, and natural resources are such native title was extinguished upon the ratification of the 1935 Constitution.
unconstitutional. The fundamental question is, who, between the State and the
indigenous peoples, are the rightful owners of these properties? Fifth, petitioners admit that Congress is mandated under Section 5, Article XII of
the Constitution to protect that rights of indigenous peoples to their ancestral
It bears stressing that a statute should be construed in harmony with, and not in lands and ancestral domains. However, they contend that the mandate is
violation, of the fundamental law. 65 The reason is that the legislature, in enacting subject to Section 2, Article XII and the theory of jura regalia embodied therein.
a statute, is assumed to have acted within its authority and adhered to the According to petitioners, the recognition and protection under R.A. 8371 of the
constitutional limitations. Accordingly, courts should presume that it was the right of ownership over ancestral lands and ancestral domains is far in excess of
intention of the legislature to enact a valid, sensible, and just law and one which the legislative power and constitutional mandate of Congress.
operates no further than may be necessary to effectuate the specific purpose of
the law.66 Finally, on the premise that ancestral lands and ancestral domains are owned by
the State, petitioners posit that R.A. 8371 violates Section 2, Article XII of the
A. The provisions of IPRA recognizing the ownership of indigenous peoples Constitution which prohibits the alienation of non-agricultural lands of the public
over the ancestral lands and ancestral domains are not unconstitutional. domain and other natural resources.

In support of their theory that ancestral lands and ancestral domains are part of I am not persuaded by these contentions.
the public domain and, thus, owned by the State, pursuant to Section 2, Article
XII of the Constitution, petitioners and the Solicitor General advance the Undue reliance by petitioners and the Solicitor General on the theory of jura
following arguments: regalia is understandable. Not only is the theory well recognized in our legal
system; it has been regarded, almost with reverence, as the immutable
First, according to petitioners, the King of Spain under international law acquired postulate of Philippine land law. It has been incorporated into our fundamental
exclusive dominion over the Philippines by virtue of discovery and conquest. law and has been recognized by the Court.67
They contend that the Spanish King under the theory of jura regalia, which was
introduced into Philippine law upon Spanish conquest in 1521, acquired title to Generally, under the concept of jura regalia, private title to land must be traced
all the lands in the archipelago. to some grant, express or implied, from the Spanish Crown or its successors,
the American Colonial government, and thereafter, the Philippine Republic. The
Second, petitioners and the Solicitor General submit that ancestral lands and belief that the Spanish Crown is the origin of all land titles in the Philippines has
ancestral domains are owned by the State. They invoke the theory of jura
persisted because title to land must emanate from some source for it cannot invoking the theory of jura regalia. On appeal, the United States Supreme Court
issue forth from nowhere.68 held that the applicant was entitled to the registration of his native title to their
ancestral land.
In its broad sense, the term "jura regalia" refers to royal rights, 69 or those rights
which the King has by virtue of his prerogatives. 70 In Spanish law, it refers to a Cariño was decided by the U.S. Supreme Court in 1909, at a time when
right which the sovereign has over anything in which a subject has a right of decisions of the U.S. Court were binding as precedent in our jurisdiction. 78 We
property or propriedad.71 These were rights enjoyed during feudal times by the applied the Cariño doctrine in the 1946 case of Oh Cho vs. Director of
king as the sovereign. Lands,79 where we stated that "[a]ll lands that were not acquired from the
Government either by purchase or by grant, belong to the public domain, but
The theory of the feudal system was that title to all lands was originally held by [a]n exception to the rule would be any land that should have been in the
the King, and while the use of lands was granted out to others who were possession of an occupant and of his predecessors in interest since time
permitted to hold them under certain conditions, the King theoretically retained immemorial, for such possession would justify the presumption that the land had
the title.72 By fiction of law, the King was regarded as the original proprietor of all never been part of the public domain or that it had been private property even
lands, and the true and only source of title, and from him all lands were before the Spanish conquest."80
held.73 The theory of jura regalia was therefore nothing more than a natural fruit
of conquest.74 Petitioners however aver that the U.S. Supreme Court’s ruling in Cariño was
premised on the fact that the applicant had complied with the requisites of
The Regalian theory, however, does not negate native title to lands held in acquisitive prescription, having established that he and his predecessors-in-
private ownership since time immemorial. In the landmark case of Cariño vs. interest had been in possession of the property since time immemorial. In effect,
Insular Government75 the United States Supreme Court, reversing the petitioners suggest that title to the ancestral land applied for by Cariño was
decision76of the pre-war Philippine Supreme Court, made the following transferred from the State, as original owner, to Cariño by virtue of prescription.
pronouncement: They conclude that the doctrine cannot be the basis for decreeing "by mere
legislative fiat…that ownership of vast tracts of land belongs to [indigenous
x x x Every presumption is and ought to be taken against the Government in a peoples] without judicial confirmation." 81
case like the present. It might, perhaps, be proper and sufficient to say
that when, as far back as testimony or memory goes, the land has been The Solicitor General, for his part, claims that the Cariño doctrine applies only to
held by individuals under a claim of private ownership, it will be presumed alienable lands of the public domain and, as such, cannot be extended to other
to have been held in the same way from before the Spanish conquest, and lands of the public domain such as forest or timber, mineral lands, and national
never to have been public land. x x x.77 (Emphasis supplied.) parks.

The above ruling institutionalized the recognition of the existence of native title There is no merit in these contentions.
to land, or ownership of land by Filipinos by virtue of possession under a claim
of ownership since time immemorial and independent of any grant from the A proper reading of Cariño would show that the doctrine enunciated therein
Spanish Crown, as an exception to the theory of jura regalia. applies only to lands which have always been considered as private, and not
to lands of the public domain, whether alienable or otherwise. A distinction must
In Cariño, an Igorot by the name of Mateo Cariño applied for registration in his be made between ownership of land under native title and ownership by
name of an ancestral land located in Benguet. The applicant established that he acquisitive prescription against the State. Ownership by virtue of native title
and his ancestors had lived on the land, had cultivated it, and had used it as far presupposes that the land has been held by its possessor and his predecessors-
they could remember. He also proved that they had all been recognized as in-interest in the concept of an owner since time immemorial. The land is not
owners, the land having been passed on by inheritance according to native acquired from the State, that is, Spain or its successors-in-interest, the United
custom. However, neither he nor his ancestors had any document of title from States and the Philippine Government. There has been no transfer of title from
the Spanish Crown. The government opposed the application for registration, the State as the land has been regarded as private in character as far back as
memory goes. In contrast, ownership of land by acquisitive prescription against the natives that the Spaniards had come to do no harm to their persons or to
the State involves a conversion of the character of the property from alienable their property. The Spaniards intended to live among them in peace and in
public land to private land, which presupposes a transfer of title from the State to friendship and "to explain to them the law of Jesus Christ by which they will be
a private person. Since native title assumes that the property covered by it is saved." Although the Spanish expedition could defend themselves if attacked,
private land and is deemed never to have been part of the public domain, the the royal instructions admonished the commander to commit no aggressive act
Solicitor General’s thesis that native title under Cariño applies only to lands of which might arouse native hostility. 87
the public domain is erroneous. Consequently, the classification of lands of the
public domain into agricultural, forest or timber, mineral lands, and national Spanish colonial laws recognized and respected Filipino landholdings including
parks under the Constitution 82 is irrelevant to the application of native land occupancy.88 Thus, the Recopilación de Leyes de las
the Cariño doctrine because the Regalian doctrine which vests in the State Indias expressly conferred ownership of lands already held by the natives.89 The
ownership of lands of the public domain does not cover ancestral lands and royal decrees of 1880 and 1894 did not extinguish native title to land in the
ancestral domains. Philippines. The earlier royal decree, dated June 25, 1880, provided that all
those in "unlawful possession of royal lands" must legalize their possession by
Legal history supports the Cariño doctrine. means of adjustment proceedings, 90 and within the period specified. The later
royal decree, dated February 13, 1894, otherwise known as the Maura Law,
When Spain acquired sovereignty over the Philippines by virtue of its discovery declared that titles that were capable of adjustment under the royal decree of
and occupation thereof in the 16th century and the Treaty of Tordesillas of 1494 1880, but for which adjustment was not sought, were forfeited. Despite the harsh
which it entered into with Portugal, 83 the continents of Asia, the Americas and wording of the Maura Law, it was held in the case of Cariño that the royal
Africa were considered as terra nullius although already populated by other decree of 1894 should not be construed as confiscation of title, but merely as
peoples.84 The discovery and occupation by the European States, who were the withdrawal of the privilege of registering such title. 91
then considered as the only members of the international community of civilized
nations, of lands in the said continents were deemed sufficient to create title Neither was native title disturbed by the Spanish cession of the Philippines to
under international law.85 the United States, contrary to petitioners’ assertion that the US merely
succeeded to the rights of Spain, including the latter’s rights over lands of the
Although Spain was deemed to have acquired sovereignty over the Philippines, public domain.92 Under the Treaty of Paris of December 10, 1898, the cession of
this did not mean that it acquired title to all lands in the archipelago. By virtue of the Philippines did not impair any right to property existing at the time. 93 During
the colonial laws of Spain, the Spanish Crown was considered to have the American colonial regime, native title to land was respected, even protected.
acquired dominion only over the unoccupied and unclaimed portions of our The Philippine Bill of 1902 provided that property and rights acquired by the US
islands.86 through cession from Spain were to be administered for the benefit of the
Filipinos.94 In obvious adherence to libertarian principles, McKinley’s Instructions,
In sending the first expedition to the Philippines, Spain did not intend to deprive as well as the Philippine Bill of 1902, contained a bill of rights embodying the
the natives of their property. Miguel Lopez de Legazpi was under instruction of safeguards of the US Constitution. One of these rights, which served as an
the Spanish King to do no harm to the natives and to their property. In this inviolable rule upon every division and branch of the American colonial
regard, an authority on the early Spanish colonial period in the Philippines wrote: government in the Philippines,95 was that "no person shall be deprived of life,
liberty, or property without due process of law." 96 These vested rights
safeguarded by the Philippine Bill of 1902 were in turn expressly protected by
The government of [the King of Spain] Philip II regarded the Philippines as a
the due process clause of the 1935 Constitution. Resultantly, property rights of
challenging opportunity to avoid a repetition of the sanguinary conquests of
the indigenous peoples over their ancestral lands and ancestral domains were
Mexico and Peru. In his written instructions for the Adelantado Legazpi, who
firmly established in law.
commanded the expedition, Philip II envisaged a bloodless pacification of the
archipelago. This extraordinary document could have been lifted almost
verbatim from the lectures of the Dominican theologian, Francisco de Vitoria, Nonetheless, the Solicitor General takes the view that the vested rights of
delivered in the University of Salamanca. The King instructed Legazpi to inform indigenous peoples to their ancestral lands and domains were "abated by the
direct act by the sovereign Filipino people of ratifying the 1935 rights by expressly providing that the ownership of lands of the public domain
Constitution."97 He advances the following arguments: and other natural resources by the State is "subject to any existing right, grant,
lease, or concessions." The "existing rights" that were intended to be protected
The Sovereign, which is the source of all rights including ownership, has the must, perforce, include the right of ownership by indigenous peoples over their
power to restructure the consolidation of rights inherent in ownership in the ancestral lands and domains. The words of the law should be given their
State. Through the mandate of the Constitutions that have been adopted, the ordinary or usual meaning, 100 and the term "existing rights" cannot be assigned
State has wrested control of those portions of the natural resources it deems an unduly restrictive definition.
absolutely necessary for social welfare and existence. It has been held that the
State may impair vested rights through a legitimate exercise of police power. Petitioners concede that Congress is mandated under Section 5, Article XII of
the 1987 Constitution101to protect the rights of indigenous peoples to their
Vested rights do not prohibit the Sovereign from performing acts not only ancestral lands and ancestral domains. Nonetheless, they contend that the
essential to but determinative of social welfare and existence. To allow recognition and protection under IPRA of the right of ownership of indigenous
otherwise is to invite havoc in the established social system. x x x peoples over ancestral lands and ancestral domains are far in excess of the
legislative power and constitutional mandate of the Congress, 102 since such
Time-immemorial possession does not create private ownership in cases of recognition and protection amount to the alienation of lands of the public
natural resources that have been found from generation to generation to be domain, which is proscribed under Section 2, Article XII of the Constitution.
critical to the survival of the Sovereign and its agent, the State. 98
Section 5, Article XII of the Constitution expresses the sovereign intent to
Stated simply, the Solicitor General’s argument is that the State, as the source "protect the rights of indigenous peoples to their ancestral lands." In its general
of all titles to land, had the power to re-vest in itself, through the 1935 and ordinary sense, the term "right" refers to any legally enforceable claim. 103 It
Constitution, title to all lands, including ancestral lands and ancestral domains. is a power, privilege, faculty or demand inherent in one person and incident
While the Solicitor General admits that such a theory would necessarily impair upon another.104 When used in relation to property, "right" includes any interest
vested rights, he reasons out that even vested rights of ownership over in or title to an object, or any just and legal claim to hold, use and enjoy it. 105 Said
ancestral lands and ancestral domains are not absolute and may be impaired by provision in the Constitution cannot, by any reasonable construction, be
the legitimate exercise of police power. interpreted to exclude the protection of the right of ownership over such
ancestral lands. For this reason, Congress cannot be said to have exceeded its
constitutional mandate and power in enacting the provisions of IPRA, specifically
I cannot agree. The text of the provision of the 1935 Constitution invoked by the
Sections 7(a) and 8, which recognize the right of ownership of the indigenous
Solicitor General, while embodying the theory of jura regalia, is too clear for any
peoples over ancestral lands.
misunderstanding. It simply declares that "all agricultural, timber, and mineral
lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, and other natural resources of the Philippines The second paragraph of Section 5, Article XII also grants Congress the power
belong to the State." 99 Nowhere does it state that certain lands which are to "provide for the applicability of customary laws governing property rights or
"absolutely necessary for social welfare and existence," including those which relations in determining the ownership and extent of ancestral domains." In light
are not part of the public domain, shall thereafter be owned by the State. If there of this provision, does Congress have the power to decide whether ancestral
is any room for constitutional construction, the provision should be interpreted in domains shall be private property or part of the public domain? Also, does
favor of the preservation, rather than impairment or extinguishment, of vested Congress have the power to determine whether the "extent" of ancestral
rights. Stated otherwise, Section 1, Article XII of the 1935 Constitution cannot be domains shall include the natural resources found therein?
construed to mean that vested right which had existed then were extinguished
and that the landowners were divested of their lands, all in the guise of It is readily apparent from the constitutional records that the framers of the
"wrest[ing] control of those portions of the natural resources [which the State] Constitution did not intend Congress to decide whether ancestral domains shall
deems absolutely necessary for social welfare and existence." On the contrary, be public or private property. Rather, they acknowledged that ancestral domains
said Section restated the fundamental rule against the diminution of existing shall be treated as private property, and that customary laws shall merely
determine whether such private ownership is by the entire indigenous cultural The intention to treat ancestral domains as private property is also apparent
community, or by individuals, families, or clans within the community. The from the following exchange between Messrs. Suarez and Bennagen:
discussion below between Messrs. Regalado and Bennagen and Mr. Chief
Justice Davide, then members of the 1986 Constitutional Commission, is MR. SUAREZ. When we speak of customary laws governing property rights or
instructive: relations in determining the ownership and extent of the ancestral domain, are
we thinking in terms of the tribal ownership or community ownership or of private
MR. REGALADO. Thank you, Madame President. May I seek some ownership within the ancestral lands or ancestral domain?
clarifications from either Commissioner Bennagen or Commissioner Davide
regarding this phrase "CONGRESS SHALL PROVIDE FOR THE MR. BENNAGEN. The concept of customary laws is that it is considered as
APPLICABILITY OF CUSTOMARY LAWS GOVERNING PROPERTY RIGHTS ownership by private individuals, clans and even communities.
OR RELATIONS in determining the ownership and extent of the ancestral
domain," because ordinarily it is the law on ownership and the extent thereof MR. SUAREZ. So, there will be two aspects to this situation. This means that
which determine the property rights or relations arising therefrom. On the other the State will set aside the ancestral domain and there is a separate law for that.
hand, in this proposed amendment the phraseology is that it is the property Within the ancestral domain it could accept more specific ownership in terms of
rights or relations which shall be used as the basis in determining the ownership individuals within the ancestral lands.
and extent of the ancestral domain. I assume there must be a certain difference
in the customary laws and our regular civil laws on property.
MR. BENNAGEN. Individuals and groups within the ancestral
domain. 107 (Emphasis supplied.)
MR. DAVIDE. That is exactly the reason, Madam President, why we will leave it
to Congress to make the necessary exception to the general law on property
It cannot be correctly argued that, because the framers of the Constitution never
relations.
expressly mentioned Cariño in their deliberations, they did not intend to adopt
the concept of native title to land, or that they were unaware of native title as an
MR. REGALADO. I was thinking if Commissioner Bennagen could give us an exception to the theory of jura regalia.108 The framers of the Constitution, as well
example of such a customary law wherein it is the property rights and relations as the people adopting it, were presumed to be aware of the prevailing judicial
that determine the ownership and the extent of that ownership, unlike the basic doctrines concerning the subject of constitutional provisions, and courts should
fundamental rule that it is the ownership and the extent of ownership which take these doctrines into consideration in construing the Constitution. 109
determine the property rights and relations arising therefrom and consequent
thereto. Perhaps, these customary laws may have a different provision or thrust
Having thus recognized that ancestral domains under the Constitution are
so that we could make the corresponding suggestions also by way of an
considered as private property of indigenous peoples, the IPRA, by affirming or
amendment.
acknowledging such ownership through its various provisions, merely abides by
the constitutional mandate and does not suffer any vice of unconstitutionality.
MR. DAVIDE. That is exactly my own perception.
Petitioners interpret the phrase "subject to the provisions of this Constitution and
MR. BENNAGEN. Let me put it this way. national development policies and programs" in Section 5, Article XII of the
Constitution to mean "as subject to the provision of Section 2, Article XII of the
There is a range of customary laws governing certain types of ownership. There Constitution," which vests in the State ownership of all lands of the public
would be ownership based on individuals, on clan or lineage, or on domain, mineral lands and other natural resources. Following this interpretation,
community. And the thinking expressed in the consultation is that this should petitioners maintain that ancestral lands and ancestral domains are the property
be codified and should be recognized in relation to existing national laws. That is of the State.
essentially the concept. 106 (Emphasis supplied.)
This proposition is untenable. Indeed, Section 2, Article XII reiterates the There is another reason why Section 5 of Article XII mandating the protection of
declarations made in the 1935 and 1973 Constitutions on the state policy of rights of the indigenous peoples to their ancestral lands cannot be construed as
conservation and nationalization of lands of the public domain and natural subject to Section 2 of the same Article ascribing ownership of all public lands to
resources, and is of paramount importance to our national economy and the State. The Constitution must be construed as a whole. It is a rule that when
patrimony. A close perusal of the records of the 1986 Constitutional Commission construction is proper, the whole Constitution is examined in order to determine
reveals that the framers of the Constitution inserted the phrase "subject to the the meaning of any provision. That construction should be used which would
provisions of this Constitution" mainly to prevent the impairment of Torrens titles give effect to the entire instrument. 111
and other prior rights in the determination of what constitutes ancestral lands
and ancestral domains, to wit: Thus, the provisions of the Constitution on State ownership of public lands,
mineral lands and other natural resources should be read together with the other
MR. NATIVIDAD. Just one question. I want to clear this section protecting provisions thereof which firmly recognize the rights of the indigenous peoples.
ancestral lands. How does this affect the Torrens title and other prior rights? These, as set forth hereinbefore, 112 include: Section 22, Article II, providing that
the State recognizes and promotes the rights of indigenous peoples within the
MR. BENNAGEN. I think that was also discussed in the committee hearings and framework of national unity and development; Section 5, Article XII, calling for
we did say that in cases where due process is clearly established in terms of the protection of the rights of indigenous cultural communities to their ancestral
prior rights, these two have to be respected. lands to ensure their economic, social, and cultural well-being, and for the
applicability of customary laws governing property rights and relations in
MR. NATIVIDAD. The other point is: How vast is this ancestral land? Is it true determining the ownership and extent of ancestral domains; Section 1, Article
that parts of Baguio City are considered as ancestral lands? XIII, directing the removal or reduction of social, economic, political and cultural
inequities and inequalities by equitably diffusing wealth and political power for
the common good; Section 6, Article XIII, directing the application of the
MR. BENNAGEN. They could be regarded as such. If the Commissioner still
principles of agrarian reform or stewardship in the disposition and utilization of
recalls, in one of the publications that I provided the Commissioners, the parts
other natural resources, subject to prior rights, homestead rights of small
could be considered as ancestral domain in relation to the whole population of
settlers, and the rights of indigenous communities to their ancestral
Cordillera but not in relation to certain individuals or certain groups.
lands; Section 17, Article XIV, decreeing that the State shall recognize,
respect, and protect the rights of indigenous cultural communities to preserve
MR. NATIVIDAD. The Commissioner means that the whole Baguio City is and develop their cultures, traditions, and institutions; and Section 12, Article
considered as ancestral land? XVI, authorizing the Congress to create a consultative body to advise the
President on policies affecting indigenous cultural communities.
MR. BENNAGEN. Yes, in the sense that it belongs to Cordillera or in the same
manner that Filipinos can speak of the Philippine archipelago as ancestral land, Again, as articulated in the Constitution, the first goal of the national economy is
but not in terms of the right of a particular person or particular group to exploit, the more equitable distribution of opportunities, income, and
utilize, or sell it. wealth.113 Equity is given prominence as the first objective of national economic
development.114 The framers of the Constitution did not, by the phrase "subject to
MR. NATIVIDAD. But is clear that the prior rights will be respected. the provisions of this Constitution and national development policies and
programs," intend to establish a hierarchy of constitutional norms. As explained
MR. BENNAGEN. Definitely. 110 by then Commissioner (now Chief Justice) Hilario G. Davide, Jr., it was not their
objective to make certain interests primary or paramount, or to create absolute
Thus, the phrase "subject to the provisions of this Constitution" was intended by limitations or outright prohibitions; rather, the idea is towards the balancing of
the framers of the Constitution as a reiteration of the constitutional guarantee interests:
that no person shall be deprived of property without due process of law.
BISHOP BACANI. In Commissioner Davide’s formulation of the first sentence, standards and guidelines in determining whether a particular area is to be
he says: "The State, SUBJECT TO THE provisions of this Constitution AND considered as part of and within the ancestral domains. In other words, Section
NATIONAL DEVELOPMENT POLICIES AND PROGRAMS shall guarantee the 3(a) serves only as a yardstick which points out what properties are within the
rights of cultural or tribal communities to their ancestral lands to insure their ancestral domains. It does not confer or recognize any right of ownership over
economic, social and cultural well-being." There are at least two concepts here the natural resources to the indigenous peoples. Its purpose is definitional and
which receive different weights very often. They are the concepts of national not declarative of a right or title.
development policies and programs, and the rights of cultural or tribal
communities to their ancestral lands, et cetera. I would like to ask: When the The specification of what areas belong to the ancestral domains is, to our mind,
Commissioner proposed this amendment, which was the controlling concept? I important to ensure that no unnecessary encroachment on private properties
ask this because sometimes the rights of cultural minorities are precisely outside the ancestral domains will result during the delineation process. The
transgressed in the interest of national development policies and programs. mere fact that Section 3(a) defines ancestral domains to include the natural
Hence, I would like to know which is the controlling concept here. Is it the rights resources found therein does not ipso facto convert the character of such
of indigenous peoples to their ancestral lands or is it national development natural resources as private property of the indigenous peoples. Similarly,
policies and programs. Section 5 in relation to Section 3(a) cannot be construed as a source of
ownership rights of indigenous people over the natural resources simply
MR. DAVIDE. It is not really a question of which is primary or which is because it recognizes ancestral domains as their "private but community
more paramount. The concept introduced here is really the balancing of property."
interests. That is what we seek to attain. We have to balance the interests
taking into account the specific needs and the specific interests also of these The phrase "private but community property" is merely descriptive of the
cultural communities in like manner that we did so in the autonomous indigenous peoples’ concept of ownership as distinguished from that provided in
regions.115 (Emphasis supplied.) the Civil Code. In Civil Law, "ownership" is the "independent and general power
of a person over a thing for purposes recognized by law and within the limits
B. The provisions of R.A. 8371 do not infringe upon the State’s ownership over established thereby."122 The civil law concept of ownership has the following
the natural resources within the ancestral domains. attributes: jus utendi or the right to receive from the thing that which it
produces, jus abutendi or the right to consume the thing by its use, jus
Petitioners posit that IPRA deprives the State of its ownership over mineral disponendi or the power to alienate, encumber, transform and even destroy that
lands of the public domain and other natural resources, 116 as well as the State’s which is owned and jus vidicandi or the right to exclude other persons from the
full control and supervision over the exploration, development and utilization of possession the thing owned.123 In contrast, the indigenous peoples’ concept of
natural resources.117 Specifically, petitioners and the Solicitor General assail ownership emphasizes the importance of communal or group ownership. By
Sections 3 (a),118 5,119 and 7120 of IPRA as violative of Section 2, Article XII of the virtue of the communal character of ownership, the property held in common
Constitution which states, in part, that "[a]ll lands of the public domain, waters, "cannot be sold, disposed or destroyed" 124 because it was meant to benefit the
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, whole indigenous community and not merely the individual member. 125
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources
are owned by the State."121 They would have the Court declare as That IPRA is not intended to bestow ownership over natural resources to the
unconstitutional Section 3(a) of IPRA because the inclusion of natural resources indigenous peoples is also clear from the deliberations of the bicameral
in the definition of ancestral domains purportedly results in the abdication of conference committee on Section 7 which recites the rights of indigenous
State ownership over these resources. peoples over their ancestral domains, to wit:

I am not convinced. CHAIRMAN FLAVIER. Accepted. Section 8 126 rights to ancestral domain, this is
where we transferred the other provision but here itself -
Section 3(a) merely defines the coverage of ancestral domains, and describes
the extent, limit and composition of ancestral domains by setting forth the
HON. DOMINGUEZ. Mr. Chairman, if I maybe allowed to make a very short What is evident is that the IPRA protects the indigenous peoples’ rights and
Statement. Earlier, Mr. Chairman, we have decided to remove the provisions welfare in relation to the natural resources found within their ancestral
on natural resources because we all agree that that belongs to the State. domains,128 including the preservation of the ecological balance therein and the
Now, the plight or the rights of those indigenous communities living in forest and need to ensure that the indigenous peoples will not be unduly displaced when
areas where it could be exploited by mining, by dams, so can we not also State-approved activities involving the natural resources located therein are
provide a provision to give little protection or either rights for them to be undertaken.
consulted before any mining areas should be done in their areas, any logging
done in their areas or any dam construction because this has been disturbing Finally, the concept of native title to natural resources, unlike native title
our people especially in the Cordilleras. So, if there could be, if our lawyers or to land, has not been recognized in the Philippines. NCIP and Flavier, et
the secretariat could just propose a provision for incorporation here so that al. invoke the case of Reavies v. Fianza129 in support of their thesis that native
maybe the right to consultation and the right to be compensated when there are title to natural resources has been upheld in this jurisdiction. 130 They insist that "it
damages within their ancestral lands. is possible for rights over natural resources to vest on a private (as opposed to a
public) holder if these were held prior to the 1935 Constitution." 131 However, a
CHAIRMAN FLAVIER. Yes, very well taken but to the best of my recollection judicious examination of Reavies reveals that, contrary to the position of NCIP
both are already considered in subsequent sections which we are now looking and Flavier, et al., the Court did not recognize native title to natural resources.
for. Rather, it merely upheld the right of the indigenous peoples to claim ownership
of minerals under the Philippine Bill of 1902.
HON. DOMINGUEZ. Thank you.
While as previously discussed, native title to land or private ownership by
CHAIRMAN FLAVIER. First of all there is a line that gives priority use for the Filipinos of land by virtue of time immemorial possession in the concept of an
indigenous people where they are. Number two, in terms of the mines there is a owner was acknowledged and recognized as far back during the Spanish
need for prior consultation of source which is here already. So, anyway it is on colonization of the Philippines, there was no similar favorable treatment as
the record that you want to make sure that the secretariat takes note of those regards natural resources. The unique value of natural resources has been
two issues and my assurance is that it is already there and I will make sure that acknowledged by the State and is the underlying reason for its consistent
they cross check. assertion of ownership and control over said natural resources from the Spanish
regime up to the present.132 Natural resources, especially minerals, were
HON. ADAMAT. I second that, Mr. Chairman. considered by Spain as an abundant source of revenue to finance its battles in
wars against other nations. Hence, Spain, by asserting its ownership over
minerals wherever these may be found, whether in public or private lands,
CHAIRMAN FLAVIER. Okay, thank you. So we now move to Section 8, there is
recognized the separability of title over lands and that over minerals which may
a Senate version you do not have and if you agree we will adopt
be found therein. 133
that.127 (Emphasis supplied.)
On the other hand, the United States viewed natural resources as a source of
Further, Section 7 makes no mention of any right of ownership of the indigenous
wealth for its nationals. As the owner of natural resources over the Philippines
peoples over the natural resources. In fact, Section 7(a) merely recognizes the
after the latter’s cession from Spain, the United States saw it fit to allow both
"right to claim ownership over lands, bodies of water traditionally and actually
Filipino and American citizens to explore and exploit minerals in public lands,
occupied by indigenous peoples, sacred places, traditional hunting and fishing
and to grant patents to private mineral lands. A person who acquired ownership
grounds, and all improvements made by them at any time within the domains."
over a parcel of private mineral land pursuant to the laws then prevailing could
Neither does Section 7(b), which enumerates certain rights of the indigenous
exclude other persons, even the State, from exploiting minerals within his
peoples over the natural resources found within their ancestral domains, contain
property.134 Although the United States made a distinction between minerals
any recognition of ownership vis-a-vis the natural resources.
found in public lands and those found in private lands, title in these minerals was
in all cases sourced from the State. The framers of the 1935 Constitution found
it necessary to maintain the State’s ownership over natural resources to insure C. The provisions of IPRA pertaining to the utilization of natural resources are
their conservation for future generations of Filipinos, to prevent foreign control of not unconstitutional.
the country through economic domination; and to avoid situations whereby the
Philippines would become a source of international conflicts, thereby posing The IPRA provides that indigenous peoples shall have the right to manage and
danger to its internal security and independence. 135 conserve the natural resources found on the ancestral domains, to benefit from
and share in the profits from the allocation and utilization of these resources,
The declaration of State ownership and control over minerals and other natural and to negotiate the terms and conditions for the exploration of such natural
resources in the 1935 Constitution was reiterated in both the 1973 136 and 1987 resources.138 The statute also grants them priority rights in the harvesting,
Constitutions.137 extraction, development or exploitation of any natural resources within the
ancestral domains.139 Before the NCIP can issue a certification for the renewal,
Having ruled that the natural resources which may be found within the ancestral or grant of any concession, license or lease, or for the perfection of any
domains belong to the State, the Court deems it necessary to clarify that the production-sharing agreement the prior informed written consent of the
jurisdiction of the NCIP with respect to ancestral domains under Section 52 [i] of indigenous peoples concerned must be obtained. 140 In return, the indigenous
IPRA extends only to the lands and not to the natural resources therein. peoples are given the responsibility to maintain, develop, protect and conserve
the ancestral domains or portions thereof which are found to be necessary for
Section 52[i] provides: critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected
areas, forest cover, or reforestation.141
Turnover of Areas Within Ancestral Domains Managed by Other Government
Agencies. - The Chairperson of the NCIP shall certify that the area covered is an The Solicitor General argues that these provisions deny the State an active and
ancestral domain. The secretaries of the Department of Agrarian Reform, dominant role in the utilization of our country’s natural resources. Petitioners, on
Department of Environment and Natural Resources, Department of Interior and the other hand, allege that under the Constitution the exploration, development
Local Government, and Department of Justice, the Commissioner of the and utilization of natural resources may only be undertaken by the State, either
National Development Corporation, and any other government agency claiming directly or indirectly through co-production, joint venture, or production-sharing
jurisdiction over the area shall be notified thereof. Such notification shall agreements.142 To petitioners, no other method is allowed by the Constitution.
terminate any legal basis for the jurisdiction previously claimed. They likewise submit that by vesting ownership of ancestral lands and ancestral
domains in the indigenous peoples, IPRA necessarily gives them control over
the use and enjoyment of such natural resources, to the prejudice of the State. 143
Undoubtedly, certain areas that are claimed as ancestral domains may still be
under the administration of other agencies of the Government, such as the
Department of Agrarian Reform, with respect to agricultural lands, and the Section 2, Article XII of the Constitution provides in paragraph 1 thereof that the
Department of Environment and Natural Resources with respect to timber, forest exploration, development and utilization of natural resources must be under the
and mineral lands. Upon the certification of these areas as ancestral domain full control and supervision of the State, which may directly undertake such
following the procedure outlined in Sections 51 to 53 of the IPRA, jurisdiction of activities or enter into co-production, joint venture, or production-sharing
the government agency or agencies concerned over lands forming part thereof agreements. This provision, however, should not be read in isolation to avoid a
ceases. Nevertheless, the jurisdiction of government agencies over the natural mistaken interpretation that any and all forms of utilization of natural resources
resources within the ancestral domains does not terminate by such certification other than the foregoing are prohibited. The Constitution must be regarded as
because said agencies are mandated under existing laws to administer the consistent with itself throughout. 144 No constitutional provision is to be separated
natural resources for the State, which is the owner thereof. To construe Section from all the others, or to be considered alone, all provisions bearing upon a
52[i] as divesting the State, through the government agencies concerned, of particular subject are to be brought into view and to be so interpreted as to
jurisdiction over the natural resources within the ancestral domains would be effectuate the great purposes of the fundamental law. 145
inconsistent with the established doctrine that all natural resources are owned
by the State. In addition to the means of exploration, development and utilization of the
country’s natural resources stated in paragraph 1, Section 2 of Article XII, the
Constitution itself states in the third paragraph of the same section that damages which they may sustain as a result of the project, and the right to
Congress may, by law, allow small-scale utilization of natural resources by effective measures by the government to prevent any interference with,
its citizens.146 Further, Section 6, Article XIII, directs the State, in the disposition alienation and encroachment of these rights."
and utilization of natural resources, to apply the principles of agrarian reform or
stewardship.147 Similarly, Section 7, Article XIII mandates the State to protect the It must be noted that the right to negotiate terms and conditions granted under
rights of subsistence fishermen to the preferential use of marine and fishing Section 7(b) pertains only to the exploration of natural resources. The term
resources.148 Clearly, Section 2, Article XII, when interpreted in view of the pro- "exploration" refers only to the search or prospecting of mineral resources, or
Filipino, pro-poor philosophy of our fundamental law, and in harmony with the any other means for the purpose of determining the existence and the feasibility
other provisions of the Constitution rather as a sequestered of mining them for profit.155 The exploration, which is merely a preliminary
pronouncement,149 cannot be construed as a prohibition against any and all activity, cannot be equated with the entire process of "exploration, development
forms of utilization of natural resources without the State’s direct participation. and utilization" of natural resources which under the Constitution belong to the
State.
Through the imposition of certain requirements and conditions for the
exploration, development and utilization of the natural resources under existing Section 57, on the other hand, grants the indigenous peoples "priority rights" in
laws,150 the State retains full control over such activities, whether done on small- the utilization of natural resources and not absolute ownership thereof. Priority
scale basis151 or otherwise. rights does not mean exclusive rights. What is granted is merely the right of
preference or first consideration in the award of privileges provided by existing
The rights given to the indigenous peoples regarding the exploitation of natural laws and regulations, with due regard to the needs and welfare of indigenous
resources under Sections 7(b) and 57 of IPRA amplify what has been granted to peoples living in the area.
them under existing laws, such as the Small-Scale Mining Act of 1991 (R.A.
7076) and the Philippine Mining Act of 1995 (R.A. 7942). R.A. 7076 expressly There is nothing in the assailed law which implies an automatic or mechanical
provides that should an ancestral land be declared as a people’s small-scale character in the grant of concessions. Nor does the law negate the exercise of
mining area, the members of the indigenous peoples living within said area shall sound discretion by government entities. Several factors still have to be
be given priority in the awarding of small-scale mining contracts.152 R.A. considered. For example, the extent and nature of utilization and the consequent
7942 declares that no ancestral land shall be opened for mining operations impact on the environment and on the indigenous peoples’ way of life are
without the prior consent of the indigenous cultural community important considerations. Moreover, the indigenous peoples must show that
concerned153 and in the event that the members of such indigenous cultural they live in the area and that they are in the best position to undertake the
community give their consent to mining operations within their ancestral required utilization.
land, royalties shall be paid to them by the parties to the mining to the
contract.154 It must be emphasized that the grant of said priority rights to indigenous peoples
is not a blanket authority to disregard pertinent laws and regulations. The
In any case, a careful reading of Section 7(b) would reveal that the rights given utilization of said natural resources is always subject to compliance by the
to the indigenous peoples are duly circumscribed. These rights are limited only indigenous peoples with existing laws, such as R.A. 7076 and R.A. 7942 since it
to the following: "to manage and conserve natural resources within territories is not they but the State, which owns these resources.
and uphold it for future generations; to benefit and share the profits from
allocation and utilization of the natural resources found therein; to negotiate the It also bears stressing that the grant of priority rights does not preclude the State
terms and conditions for the exploration of natural resources in the areas for from undertaking activities, or entering into co-production, joint venture or
the purpose of ensuring ecological, environmental protection and the production-sharing agreements with private entities, to utilize the natural
conservation measures, pursuant to national and customary laws; to an resources which may be located within the ancestral domains. There is no
informed and intelligent participation in the formulation and implementation intention, as between the State and the indigenous peoples, to create a
of any project, government or private, that will affect or impact upon the hierarchy of values; rather, the object is to balance the interests of the State for
ancestral domains and to receive just and fair compensation for any national development and those of the indigenous peoples.
Neither does the grant of priority rights to the indigenous peoples exclude non- The requirement in Section 59 that prior written informed consent of the
indigenous peoples from undertaking the same activities within the ancestral indigenous peoples must be procured before the NCIP can issue a certification
domains upon authority granted by the proper governmental agency. To do so for the "issuance, renewal, or grant of any concession, license or lease, or to the
would unduly limit the ownership rights of the State over the natural resources. perfection of any production-sharing agreement," must be interpreted, not as a
grant of the power to control the exploration, development and utilization of
To be sure, the act of the State of giving preferential right to a particular sector in natural resources, but merely the imposition of an additional requirement for
the utilization of natural resources is nothing new. As previously mentioned, such concession or agreement. The clear intent of the law is to protect the rights
Section 7, Article XIII of the Constitution mandates the protection by the State of and interests of the indigenous peoples which may be adversely affected by the
"the rights of subsistence fishermen, especially of local communities, to the operation of such entities or licensees.
preferential use of communal marine and fishing resources, both inland and
offshore." Corollary Issues

Section 57 further recognizes the possibility that the exploration and exploitation A. IPRA does not violate the Due Process clause.
of natural resources within the ancestral domains may disrupt the natural
environment as well as the traditional activities of the indigenous peoples The first corollary issue raised by petitioners is whether IPRA violates Section 1,
therein. Hence, the need for the prior informed consent of the indigenous Article III of the Constitution, which provides that "no person shall be deprived of
peoples before any search for or utilization of the natural resources within their life, liberty, or property without due process of law, nor shall any person be
ancestral domains is undertaken. deprived the equal protection of the laws."

In a situation where the State intends to directly or indirectly undertake such Petitioners maintain that the broad definition of ancestral lands and ancestral
activities, IPRA requires that the prior informed consent of the indigenous domains under Section 3(a) and 3(b) of IPRA includes private lands. They argue
peoples be obtained. The State must, as a matter of policy and law, consult the that the inclusion of private lands in the ancestral lands and ancestral domains
indigenous peoples in accordance with the intent of the framers of the violates the due process clause.162 Petitioners’ contention is erroneous.
Constitution that national development policies and programs should involve a
systematic consultation to balance local needs as well as national plans. As may Sections 3(a) and 3(b) expressly provide that the definition of ancestral lands
be gathered from the discussion of the framers of the Constitution on this point, and ancestral domains are "subject to Section 56," which reads:
the national plan presumably takes into account the requirements of the region
after thorough consultation. 156 To this end, IPRA grants to the indigenous
Sec. 56. Existing Property Rights Regimes. – Property rights within the ancestral
peoples the right to an informed and intelligent participation in the formulation
domains already existing and/or vested upon effectivity of this Act, shall be
and implementation of any project, government or private, and the right not to be
recognized and protected.
removed therefrom without their free and prior informed consent. 157 As to non-
members, the prior informed consent takes the form of a formal and written
agreement between the indigenous peoples and non-members under the Petitioners, however, contend that Section 56 aims to protect only the vested
proviso in Section 57 in case the State enters into a co-production, joint venture, rights of indigenous peoples, but not those who are not members of such
or production-sharing agreement with Filipino citizens, or corporations. This communities. Following their interpretation, IPRA, under Section 56, recognizes
requirement is not peculiar to IPRA. Existing laws and regulations such as the the rights of indigenous peoples to their ancestral lands and ancestral
Philippine Environmental Policy,158 the Environmental Impact System, 159 the domains, subject to the vested rights of the same communities to such
Local Government Code160 and the Philippine Mining Act of 1995 161already ancestral lands and ancestral domains. Such interpretation is obviously
require increased consultation and participation of stakeholders, such as incorrect.
indigenous peoples, in the planning of activities with significant environment
impact. The "property rights" referred to in Section 56 belong to those acquired by
individuals, whether indigenous or non-indigenous peoples. Said provision
makes no distinction as to the ethnic origins of the ownership of these "property cannot but harbor a suspicion that they do not have the cold neutrality of an
rights." The IPRA thus recognizes and respects "vested rights" regardless of impartial judge."172
whether they pertain to indigenous or non-indigenous peoples. Where the law
does not distinguish, the courts should not distinguish. 163 What IPRA only In addition, petitioners claim that IPRA prescribes that customary laws shall be
requires is that these "property rights" already exist and/or vested upon its applied first in disputes involving property, succession and land, 173 and that such
effectivity. laws shall likewise be used in disputes involving indigenous peoples. 174 They
assert that "[w]hen the dispute involves a member of an [indigenous cultural
Further, by the enactment of IPRA, Congress did not purport to annul any and community and another who is not], a resolution of such a dispute based on
all Torrens titles within areas claimed as ancestral lands or ancestral domains. customary laws. . . would clearly be a denial of due process. . . [because those
The statute imposes strict procedural requirements for the proper delineation of who are not indigenous peoples] do not know what these customary laws are." 175
ancestral lands and ancestral domains as safeguards against the fraudulent
deprivation of any landowner of his land, whether or not he is member of an Petitioners’ concerns are unfounded. The fact that the NCIP is composed of
indigenous cultural community. In all proceedings for delineation of ancestral members of the indigenous peoples does not mean that it (the NCIP) is
lands and ancestral domains, the Director of Lands shall appear to represent the incapable, or will appear to be so incapable, of delivering justice to the non-
interest of the Republic of the Philippines. 164 With regard to ancestral domains, indigenous peoples. A person’s possession of the trait of impartiality desirable of
the following procedure is mandatory: first, petition by an indigenous cultural a judge has nothing to do with his or her ethnic roots. In this wise, the
community, or motu proprio by the NCIP; second, investigation and census by indigenous peoples are as capable of rendering justice as the non-indigenous
the Ancestral domains Office ("ADO") of the NCIP; third, preliminary report by peoples for, certainly, the latter have no monopoly of the concept of justice.
the ADO; fourth, posting and publication; and lastly, evaluation by the NCIP
upon submission of the final report of the ADO. 165 With regard to ancestral In any case, there are sufficient checks in the law against any abuse by the
lands, unless such lands are within an ancestral domain, the statute imposes NCIP of its quasi-judicial powers. Section 67 states that the decision of the NCIP
the following procedural requirements: first, application; second, posting and shall be appealable to the Court of Appeals by petition for review. The regular
publication; third, investigation and inspection by the ADO; fourth, remedies under our rules of procedure are likewise available to any party
delineation; lastly, evaluation by the NCIP upon submission of a report by the aggrieved by the decision of the NCIP.
ADO.166 Hence, we cannot sustain the arguments of the petitioners that the law
affords no protection to those who are not indigenous peoples.
Anent the use of customary laws in determining the ownership and extent of
ancestral domains, suffice it to say that such is allowed under paragraph 2,
Neither do the questioned sections of IPRA on the composition and powers and Section 5 of Article XII of the Constitution. Said provision states, "The Congress
jurisdiction of the NCIP167 and the application of customary law, 168 violate the due may provide for the applicability of customary laws governing property rights and
process clause of the Constitution. relations in determining the ownership and extent of the ancestral domains."
Notably, the use of customary laws under IPRA is not absolute, for the law
Petitioners point out that IPRA provides that the NCIP shall be composed speaks merely of primacy of use.176 The IPRA prescribes the application of
exclusively of members of indigenous peoples, 169 and that the NCIP shall have such customary laws where these present a workable solution acceptable to the
jurisdiction over all claims and disputes involving indigenous parties, who are members of the same indigenous group. This interpretation is
peoples,170 including even disputes between a member of such communities and supported by Section 1, Rule IX of the Implementing Rules which states:
one who is not a member, as well as over disputes in the delineation of
ancestral domains.171 Petitioners clarify that they do not claim that the members RULE IX. JURISDICTION AND PROCEDURES FOR ENFORCEMENT OF
of the NCIP are incapable of being fair and impartial judges. They merely RIGHTS
contend that the NCIP will not appear to be impartial, because a party who is
not a member of an indigenous cultural community "who must defend his case
Section 1. Primacy of Customary Law. All conflicts related to ancestral domains
against [one who is] before judges who are all members of [indigenous peoples]
and lands, involving ICCs/IPs, such as but not limited to conflicting claims and
boundary disputes, shall be resolved by the concerned parties through the
application of customary laws in the area where the disputed ancestral domain The assailed provision of the Implementing Rules provides:
or land is located.
Rule VII. The National Commission on Indigenous Peoples (NCIP)
All conflicts related to the ancestral domains or lands where one of the
parties is a non-ICC/IP or where the dispute could not be resolved through xxx
customary law shall be heard and adjudicated in accordance with the
Rules on Pleadings, Practice and Procedures Before the NCIP to be Part II: NCIP as an Independent Agency Under the Office of the President
adopted hereafter. (Emphasis supplied.)
Section 1. The NCIP is the primary agency of government for the formulation
The application of customary law is limited to disputes concerning property and implementation of policies, plans and programs to recognize, promote and
rights or relations in determining the ownership and extent of the protect the rights and well-being of indigenous peoples. It shall be an
ancestral domains,177 where all the parties involved are members of indigenous independent agency under the Office of the President. As such, the
peoples,178 specifically, of the same indigenous group. It therefore follows that administrative relationship of the NCIP to the Office of the President is
when one of the parties to a dispute is a non-member of an indigenous group, or characterized as a lateral but autonomous relationship for purposes of
when the indigenous peoples involved belong to different groups, the application policy and program coordination. This relationship shall be carried out
of customary law is not required. through a system of periodic reporting. Matters of day-to-day administration or
all those pertaining to internal operations shall be left to the discretion of the
Like any other law, the objective of IPRA in prescribing the primacy of customary Chairperson of the Commission, as the Chief Executive Officer.
law in disputes concerning ancestral lands and domains where all parties
involved are indigenous peoples is justice. The utilization of customary laws is in Petitioners asseverate that the aforecited rule infringes upon the power of
line with the constitutional policy of recognizing the application thereof through control of the President over the NCIP by characterizing the relationship of the
legislation passed by Congress. NCIP to the Office of the President as "lateral but autonomous...for purposes of
policy and program coordination."
Furthermore, the recognition and use of customary law is not a novel idea in this
jurisdiction. Under the Civil Code, use of customary law is sanctioned, as long Although both Section 40 of the IPRA and Section 1, Part II, Rule VII of the
as it is proved as a fact according to the rules of evidence, 179 and it is not Implementing Rules characterize the NCIP as an independent agency under the
contrary to law, public order or public policy. 180 Moreover, the Local Government Office of the President, such characterization does not remove said body from
Code of 1991 calls for the recognition and application of customary laws to the the President’s control and supervision.
resolution of issues involving members of indigenous peoples. This law admits
the operation of customary laws in the settling of disputes if such are ordinarily
The NCIP has been designated under IPRA as the primary government agency
used in barangays where majority of the inhabitants are members of indigenous
responsible for the formulation and implementation of policies, plans and
peoples.181
programs to promote and protect the rights and well being of the indigenous
peoples and the recognition of their ancestral domain as well as their rights
B. Section 1, Part II, Rule VII of the Implementing Rules of IPRA does not thereto.182 It has been granted administrative,183 quasi-legislative184 and quasi-
infringe upon the President’s power of control over the Executive Department. judicial powers185 to carry out its mandate. The diverse nature of the NCIP’s
functions renders it impossible to place said agency entirely under the control of
The second corollary issue is whether the Implementing Rules of IPRA violate only one branch of government and this, apparently, is the reason for its
Section 17, Article VII of the Constitution, which provides that: characterization by Congress as an independent agency. An "independent
agency" is defined as an administrative body independent of the executive
The President shall have control of all the executive departments, bureaus, and branch or one not subject to a superior head of department, as distinguished
offices. He shall ensure that the laws be faithfully executed. from a "subordinate agency" or an administrative body whose action is subject
to administrative review or revision.186
That Congress did not intend to place the NCIP under the control of the their ancestral domains merely amplify what has been earlier granted to them
President in all instances is evident in the IPRA itself, which provides that the under the aforesaid laws;
decisions of the NCIP in the exercise of its quasi-judicial functions shall be
appealable to the Court of Appeals, 187 like those of the National Labor Relations (3) While the IPRA recognizes the rights of indigenous peoples with regard to
Commission (NLRC) and the Securities and Exchange Commission (SEC). their ancestral lands and domains, it also protects the vested rights of persons,
Nevertheless, the NCIP, although independent to a certain degree, was placed whether indigenous or non-indigenous peoples, who may have acquired rights
by Congress "under the office of the President" and, as such, is still subject to of ownership lands or rights to explore and exploit natural resources within the
the President’s power of control and supervision granted under Section 17, ancestral lands and domains;198
Article VII of the Constitution 188 with respect to its performance of administrative
functions, such as the following: (1) the NCIP must secure the President’s (4) The Due Process Clause of the Constitution is not violated by the provisions
approval in obtaining loans to finance its projects; 189 (2) it must obtain the (Sections 40, 51-54, 62, 63, 65 and 66) of the IPRA which, among others,
President’s approval for any negotiation for funds and for the acceptance of gifts establish the composition of the NCIP, and prescribe the application of
and/or properties in whatever from and from whatever source; 190 (3) the NCIP customary law in certain disputes involving indigenous peoples. The fact the
shall submit annual reports of its operations and achievements to the President, NCIP is composed wholly of indigenous peoples does not mean that it is
and advise the latter on all matters relating to the indigenous peoples; 191 and (4) incapable of being impartial. Moreover, the use of customary laws is sanctioned
it shall exercise such other powers as may be directed by the President. 192 The by paragraph 2, Section 5 of Article XII of the Constitution; and
President is also given the power to appoint the Commissioners of the
NCIP193 as well as to remove them from office for cause motu proprio or upon
(5) The provision of the Implementing Rules characterizing the NCIP as an
the recommendation of any indigenous community.194
independent agency under the Office of the President does not infringe upon the
President’s power of control under Section 17, Article VII of the Constitution,
To recapitulate: since said provision as well as Section 40 of the IPRA expressly places the
NCIP under the Office of the President, and therefore under the President’s
(1) The provisions of the IPRA (specifically Sections 3, paragraphs (a) and (b), control and supervision with respect to its administrative functions. However,
5, 6, 7, and 8) affirming the ownership by the indigenous peoples of their insofar as the decisions of the NCIP in the exercise of its quasi-judicial powers
ancestral lands and domains by virtue of native title do not diminish the State’s are concerned, the same are reviewable by the Court of Appeals, like those of
ownership of lands of the public domain, because said ancestral lands and the NLRC and the SEC.
domains are considered as private land, and never to have been part of the
public domain, following the doctrine laid down in Cariño vs. Insular In view of the foregoing, I vote to DISMISS the petition.
Government;195

(2) The constitutional provision vesting ownership over minerals, mineral lands
and other natural resources in the State is not violated by Sections 3, 5, 7, 56,
Footnotes
57, 58 and 59 of the IPRA which grant certain rights to the indigenous peoples
over the natural resources found within the ancestral domains, e.g., to benefit
from and share in the profits from the allocation and utilization of the same, as
1
 Teehankee vs. Rovira, 75 Phil. 634 (1945); San Miguel Corporation vs.
well as priority rights in the harvesting, extraction, development or exploitation Avelino, 89 SCRA 69 (1979); Phil. Long Distance Telephone Co. vs. Collector of
thereof. The State retains full control over the exploration, development and Internal Revenue, 90 Phil 674 (1952).
utilization of natural resources even with the grant of said rights to the
indigenous peoples, through the imposition of requirements and conditions for
2
 In re Guarina, 24 Phil. 37 (1913).
the utilization of natural resources under existing laws, such as the Small-Scale
Mining Act of 1991 196and the Philippine Mining Act of 1995. 197 Moreover, the 3
 In Philippine Colonial history, the term indio applied to indigenous throughout
rights granted to indigenous peoples for the utilization of natural resources within the vast Spanish empire. India was a synonym for all of Asia east of the Indus
River. Even after it became apparent that the explorer Christopher Columbus  See Renato Constantino, The Philippines: A Past Revisited (1975), pp. 26-41;
14

was not able to reach territories lying off the east coast of Asia, the Spanish Teodoro Agoncillo, A History of the Filipino People, 8th ed., pp. 5, 74-75.
persisted in referring to all natives within their empire as los Indios. (Owen J.
Lynch, Jr., THE PHILIPPINE COLONIAL DICHOTOMY: Attraction and 15
 Response of Rep. Gregorio A. Andolana to the interpellation of Rep. John
Disenfranchisement, 63 PL J 112 [1988] citing R. BERKHOFER, THE WHITE Henry R. Osmeña on ouse Bill No. 9125, Journal of August 20 and 21, 1997 of
MAN’S INDIAN: IMAGES OF THE AMERICAN INDIAN FROM COLUMBUS TO the House of Representatives, p.20.
THE PRESIDENT 5 [1979].
16
 Philippines Yearbook (1998 ed.), p. 366.
4
 Webster’s Third New International Dictionary (1976), p. 1151.
17
 Article II of the Constitution, entitled State Principles and Policies.
5
 Benedict Kingsbury, "Indigenous Peoples" in International Law: A
Constructivist Approach to the Asian Controversy, 92 The American Journal of 18
 Article XII of the Constitution, entitled National Economy and Patrimony.
International Law 414, 419 (1998) citing Jose Martinez Cobo, Study of the
Problem of Discrimination against indigenous population, UN Doc. E/CN.4/Sub. 19
 Article XIII of the Constitution, entitled Social Justice and Human Rights.
2/1986/ 7/ Add. 4, paras. 379-80.
20
 Ibid.
6
 Ibid. This definition is criticized for taking the potentially limited, and
controversial view of indigenous peoples by requiring "historical continuity with
pre-invasion and pre-colonial societies that developed on their territories."  Article XIV of the Constitution, entitled Education, Science, Technology, Arts,
21

Culture, and Sports.

7
 4 Record of the Constitutional Commission 34. 22
 Article XVI of the Constitution, entitled General Provisions.
8
 Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 680 (1919). 23
 SECTION 2. Declaration of State Policies . - The State shall recognize and
promote all the rights of Indigenous Cultural Communities/Indigenous Peoples
9
 Hearing before the Committee on the Philippines, United States Senate, Sixty-
(ICCs/IPs) hereunder enumerated within the framework of the Constitution:
Third Congress, Third Session on HR 18459, pp. 346, 351. Quoted in Rubi at
686.
a) The State shall recognize and promote the rights of ICCs/IPs within the
framework of national unity and development;
 United States President McKinleys’ Instruction to the Philippine Commission,
10

April 7, 1900, quoted in Rubi at 680.

b) The State shall protect the rights of ICCs/IPs to their ancestral domains to
ensure their economic, social and cultural well being and shall recognize the
11
 US v. Tubban, 29 Phil. 434, 436 (1915).
applicability of customary laws governing property rights or relations in
determining the ownership and extent of ancestral domain;
 See Owen J. Lynch, Jr., Invisible Peoples And A Hidden Agenda: The Origins
12

of Contemporary Philippine Land Laws (1900-1913), 63 PLJ 249 (1988).

c) The State shall recognize, respect and protect the rights of ICCs/IPs to
preserve and develop their cultures, traditions and institutions. It shall consider
13
 For an introduction to the chasm that exists between Philippine Law and these rights in the formulation of national laws and policies;
Indigenous Custom Law, see Owen J. Lynch, Jr., Native Title, Private Right and
Tribal Land Law: An Introductory Survey 52 PLJ 268 (1982); and the Philippine
d) The State shall guarantee that members of the ICCs/IPs regardless of sex,
Indigenous Law Collection: An Introduction and Preliminary Bibliography, 58 PLJ
shall equally enjoy the full measure of human rights and freedoms without
457 (1983), by the same author.
distinction or discrimination;
e) The State shall take measures, with the participation of the ICCs/IPs 35
 People v. Vera, 65 Phil. 56, 89 (1937).
concerned, to protect their rights and guarantee respect for their cultural
integrity, and to ensure that members of the ICCs/IPs benefit on an equal footing 36
 Lozada v. COMELEC, 120 SCRA 337, 342 (1983).
from the rights and opportunities which national laws and regulations grant to
other members of the population; and 37
 US v. Richardson, 418 US 166, 194 S Ct 2940, 41 L Ed 2d 678 (1974).

f) The State recognizes its obligations to respond to the strong expression of the  Kilosbayan v. Guingona, 232 SCRA 110, 135 (1994), citing, among others,
38

ICCs/IPs for cultural integrity by assuring maximum ICC/IP participation in the Philconsa v. Gimenez, 15 SCRA 479 (1965); CLU V. Executive Secretary, 194
direction of education, health, as well as other services of ICCs/IPs, in order to SCRA 317 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Osmena v.
render such services more responsive to the needs and desires of these COMELEC, 199 SCRA 750 (1991); Basco v. PAGCOR, 197 SCRA 52 (1991);
communities. Carpio v. Executive Secretary, 206 SCRA 290 (1992).

Towards these ends, the State shall institute and establish the necessary In Kilosbayan v. Morato (250 SCRA 130 [1995]) the Court discoursed on the rule
mechanisms to enforce and guarantee the realization of these rights, taking into on standing as follows: taxpayers may sue on the claim of illegal disbursement
consideration their customs, traditions, values, beliefs, interests and institutions, of funds, or to assail the constitutionality of a tax measure; voters may question
and to adopt and implement measures to protect their rights to their ancestral the validity of election laws; citizens may raise constitutional questions of
domains. transcendental importance which must be settled early; and, legislators may
question the validity of official acts which infringe their prerogatives.
24
 See Sections 13-20, R.A. 8371.
39
 Araneta v. Dinglasan, 84 Phil. 368, 373 (1949).
25
 See Sections 21-37, R.A. 8371.
 Assn. of Small Landowners in the Philippines v. Secretary of Agrarian Reform,
40
26
 See Sections 4-12, R.A. 8371. 175 SCRA 343, 364-365 (1989).
27
 See Sections 38-50, R.A. 8371. 41
 16 Phil. 366 (1910), citing HIGH, EXTRAORDINARY LEGAL REMEDIES.

 Dumlao v. COMELEC, 95 SCRA 392, 400 (1980), citing People vs. Vera, 65
28 42
 Id., at 371.
Phil. 56 (1937).
43
 Id., at 374-375.
29
 Subic Bay Metropolitan Authority v. COMELEC, 262 SCRA 492, 513 (1996).
44
 136 SCRA 27, 37 (1985).
30
 Board of Optometry v. Colet, 260 SCRA 88, 104 (1996).
45
 177 SCRA 374, 383 (1989).
31
 Muskrat v. United States, 219 US 346, 362 (1913).
46
 224 SCRA 792 (1993).
32
 WEBSTERS’S THIRD NEW INTERNATIONAL DICTIONARY, 1976, p. 497.
47
 Id., at 805.
33
 United States v. Freuhauf, 365 US 146 (1961).
48
 Ibid.
 Association of Small Landowners v. Secretary of Agrarian Reform, 175 SCRA
34

343, 364 (1989); Joya v. PCGG, 225 SCRA 568 (1993).

49
 Philconsa v. Mathay, 18 SCRA 300, 306 (1966). (1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari,
habeas corpus, and quo warranto, and auxiliary writs or processes, whether or
50
 Philconsa v. Gimenez, 15 SCRA 479, 487 (1965), citing 11 Am Jur 761. not in aid of its appellate jurisdiction;

 Sanidad v. COMELEC, 73 SCRA 333, 358-359 (1976); Pascual v. Secretary

51 x x x.
of Public Works, 110 Phil. 331 (1960); Tan v. Macapagal, 43 SCRA 677, 680
(1972). Sec. 21. Original jurisdiction in other cases.- Regional Trial Courts shall exercise
original jurisdiction:
 Section 79. Appropriations.- The amount necessary to finance the initial
52

implementation of this Act shall be charged against the current year's (1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto,
appropriation of the ONCC and the OSCC. Thereafter, such sums as may be habeas corpus and injunction which may be enforced in any part of their
necessary for its continued implementation shall be included in the annual respective regions; and
General Appropriations Act.
(2) In actions affecting ambassadors and other public ministers and consuls.
 Section 74. Merger of ONCC/OSCC.—The Office for Northern Cultural
53

Communities (ONCC) and the Office for Southern Cultural Communities 57

 Tano vs. Socrates, 278 SCRA 154, 173-174 (1997).
(OSCC), created under Executive Order Nos. 122-B and 122-C respectively, are
hereby merged as organic offices of the NCIP and shall continue to function 58
 172 SCRA 415 (1989).
under a revitalized and strengthened structure to achieve the objectives of the
NCIP x x x. 59
 Id., at 424.
54
 Section 2, Rule 65, 1997 RULES OF CIVIL PROCEDURE.
 Section 7. Rights to Ancestral Domains.—The rights of ownership and
60

possession of ICCs/IPs to their ancestral domains shall be recognized and

55
 Section 3, Rule 65, 1997 RULES OF CIVIL PROCEDURE. protected. Such rights shall include:
56
 Article VIII of the Constitution states: (a) Right of Ownership. – The right to claim ownership over lands, bodies of
water traditionally and actually occupied by ICCs/IPs, sacred places, traditional
Sec. 5. The Supreme Court shall have the following powers:
(b) hunting and fishing grounds, and all improvements made by them at any time
(1) Exercise original jurisdiction over cases affecting ambassadors, other public within the domains;
ministers and consuls, and over petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus. xxx

xxx  Section 3(l) Native Title – refers to pre-conquest rights to lands and domains
61

which, as far back as memory reaches, have been held under a claim of private
Batas Pambansa Blg. 129 (B.P. 129), as amended, provides: ownership by ICCs/IPs, have never been public lands and are thus indisputably
presumed to have been held that way since before the Spanish Conquest; x x x
Sec. 9. Jurisdiction.-The Court of Appeals shall exercise:
Section 3(p) Time Immemorial - refers to a period of time when as far back as
memory can go, certain ICCs/IPs are known to have occupied, possessed in the
concept of owners, and utilized a defined territory devolved to them, by
operation of customary law or inherited from their ancestors, in accordance with 69
 1 Bouvier’s Law Dictionary, 3rd revision, p. 1759.
their customs and traditions.
70
 Black’s Law Dictionary, 6th ed., p. 1282.
62
 Section 3(b) Ancestral Lands – Subject to Section 56 hereof, refers to land
occupied, possessed and utilized by individuals, families and clans who are 71
 76 Corpus Juris Secundum, citing Hart v. Burnett, 15 Cal. 530, 566.
members of the ICCs/IPs since time immemorial, by themselves or through their
predecessors-in-interest, under claims of individual or traditional group  Washburn, p. 44; see also Williams, Principles Of The Law On Real Property,
72

ownership, continuously to the present except when interrupted by war, force 6th ed. (1886), p.2; Bigelow, p. 2.
majeure or displacement by force, deceit, stealth, or as a consequence of
government projects or any other voluntary dealings entered into by the 73
 Warvelle, Abstracts and Examination of Title to Real Property (1907), p.18.
government and private individuals/corporations, including, but not limited to,
residential lots, rice terraces or paddies, private forests, swidden farms and tree
lots;
74
 1 Dictionary of English Law (Jowitt, ed.), p. 797.

63
 Section 3(a) Ancestral Domains – Subject to Section 56 hereof, refer to all
75
 41 Phil. 935, 212 U.S. 449, 53 L Ed. 594 (1909).
areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal
areas and natural resources therein, held under a claim of ownership, occupied  Cariño vs. Insular Government, 7 Phil. 132 (1906). The Philippine Supreme
76

or possessed by Indigenous peoples, by themselves or through their ancestors, Court in this case held that in the Philippines, there is no conclusive presumption
communally or individually since time immemorial, continuously to the present of a grant of title to land from the Government founded merely upon long
except when interrupted by war, force majeure or displacement by force, deceit, possession of the same by the applicant.
stealth or as a consequence of government projects or any other voluntary
dealings entered into by the government and private individuals/corporations, 77
 Cariño vs. Insular Government, supra note 75, at 941.
and which are necessary to ensure their economic, social and cultural welfare. It
shall include ancestral lands, forests, pasture, residential, agricultural, and other 78
 Section 10, Philippine Bill of 1902.
lands individually owned whether alienable and disposable or otherwise, hunting
grounds, burial grounds, worship areas, bodies of water, mineral and other 79
 75 Phil 890 (1946).
resources, and lands which may no longer be exclusively be occupied by
Indigenous peoples but from which they traditionally had access to for their 80
 Id., at 892.
subsistence and traditional activities, particularly the home ranges of ICCs/IPs
who are still nomadic and/or shifting cultivators. 81
 Memorandum of Petitioners, Rollo, p. 861.
64
 Ibid. 82
 Section 3, Article XII, Constitution.
 Hebron v. Reyes, 104 Phil. 175 (1958); San Miguel Corporation v. Avelino, 89
65

SCRA 69 (1979).  Under the Treaty of Tordesillas, the world was divided between Spain and
83

Portugal, with the former having exclusive power to claim all lands and territories
west of the Atlantic Ocean demarcation line (Lynch, The Legal Bases of
66
 In re Guarina, 24 Phil 37 (1913). Philippine Colonial Sovereignty, 62 Phil L J 279, 283 [1987]).
67
 See Lee Hong Hok vs. David, 48 SCRA 372 (1972).  See AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW,
84

5th ed., 142-143.

68
 Peña, Registration of Land Titles and Deeds, 1994 rev. ed., p. 15.
85
 See Cruz, International Law, 1996 ed., pp. 106-107. Book 6, Title 1, Law 15, decreed by King Philip II, at Madrid, 7 November 1574.
We command that in the Philippine Islands the Indians not be removed from one
86
 Cariño v. Insular Government, supra note 75, at 939. to another settlement by force and against their will.

This point finds significance in light of the distinction between sovereignty and Book 6, Title 1, Law 23, otherwise known as Ordinance 10 of 1609 decreed by
dominion. Sovereignty is the right to exercise the functions of a State to the Philip III. It is right that time should be allowed the Indians to work their own
exclusion of any other State (Case Concerning the Island of Las Palmas [1928], individual lands and those of the community.
UNRIAA II 829, 838). It is often referred to as the power of imperium, which is
defined as the government authority possessed by the State (Bernas, The Book 6, Title 1, Law 32, decreed by Philip II, 16 April 1580. We command the
Constitution of the Republic of the Philippines: A Commentary Vol. 2, p. 419). Viceroys, Presidents, and Audiencias that they see to it that the Indians have
On the other hand, dominion, or dominium, is the capacity of the State to own or complete liberty in their dispositions.
acquire property such as lands and natural resources.
Royal Cedula of October 15, 1754. Where such possessors shall not be able to
Dominium was the basis for the early Spanish decrees embracing the theory of produce title deeds it shall be sufficient if they shall show that ancient
jura regalia. The declaration in Section 2, Article XII of the 1987 Constitution that possession, as a valid title by prescription; x x x. [Quoted in Valenton v.
all lands of the public domain are owned by the State is likewise founded on Murciano, supra, at 546.] (Emphasis supplied.)
dominium (Ibid.). If dominium, not imperium, is the basis of the theory of jura
regalia, then the lands which Spain acquired in the 16th century were limited to  Article 6 of the royal decree of June 25, 1880, quoted in Valenton v. Murciano,
90

non-private lands, because it could only acquire lands which were not yet supra note 89 at 549.
privately-owned or occupied by the Filipinos. Hence, Spain acquired title only
over lands which were unoccupied and unclaimed, i.e., public lands. 91
 Cariño v. Insular Government, supra note 75, at 944.

 Phelan, The Hispanization of the Philippines: Spanish Aims and Filipinos

87
92
 Memorandum of Petitioners, par. 3.4, Rollo, pp. 845-846.
Responses, 1565-1700 (1959), pp. 8-9.
93
 The Treaty of Paris reads in part:
88
 Cariño vs. Insular Government, supra note 75, at 943.
Article III. Spain cedes to the United States the archipelago known as the
89
 Book 4, Title 12, Law 9, decreed by Philip II, 1 June 1594. We order that Philippine Islands, x x x.
grants of farms and lands to Spaniards be without injury to the Indians and that
those which have been granted to their loss and injury, be returned to the lawful
The United States will pay to Spain the sum of twenty million dollars, within three
owners.
months after the exchange of the ratifications of the present treaty.
Book 4, Title 12, Law 14. We having acquired full sovereignty over the Indies,
xxx
and all lands, territories, and possessions not heretofore ceded away by our
royal predecessors, or by us, or in our name, still pertaining the royal crown and
patrimony, it is our will that all lands which are held without proper and true Article VIII. In conformity with the provisions of Articles One, Two, and Three of
deeds of grant be restored to us according as they belong to us, in order that x x this treaty, Spain relinquishes in Cuba, and cedes in Porto Rico and other
x after distributing to the natives what may be necessary for tillage and islands of the West Indies, in the Island of Guam, and in the Philippine
pasteurage, confirming them in what they now have and giving them more if Archipelago, all the buildings, wharves, barracks, forts, structures, public
necessary, all the rest of said lands may remain free and unencumbered for us highways, and other immovable property which, in conformity with law, belong to
to dispose of as we wish. [Quoted in Valenton v. Murciano, 3 Phil. 537, 542-543 the public domain and as such belong to the Crown of Spain.
(1904).] (Emphasis supplied.)
And it is hereby declared that the relinquishment or cession, as the case may for another twenty five years, except as to water rights for irrigation, water
be, to which the preceding paragraph refers, can not in any respect impair the supply, fisheries or industrial uses other than the development of water power, in
property or rights which by law belong to the peaceful possession of property of which cases beneficial use may be the measure and limit of the grant.
all kinds, of provinces, municipalities, public or private establishments,
ecclesiastical or civic bodies, or any other associations having legal capacity to 100
 Central Azucarera Don Pedro v. Central Bank, 104 Phil 598 (1954).
acquire and possess property in the aforesaid territories renounced or ceded, or
of private individuals, of whatsoever nationality such individuals may be.  Sec. 5, Article XII. The State, subject to the provisions of this Constitution and
101

national development policies and programs, shall protect the rights of

94
 The statute reads in part: indigenous cultural communities to their ancestral lands to ensure their
economic, social, and cultural well-being.
Section 12. That all the property and rights which may have been acquired in the
Philippine Islands under the treaty of peace with Spain, signed December tenth, The Congress may provide for the applicability of customary laws governing
eighteen hundred and ninety-eight, except such land or other property as shall property rights and relations in determining the ownership and extent of
be designated by the President of the United States for military and other ancestral domains.
reservations of the Government of the United States, are hereby placed under
the control of the Government of said Islands, to be administered for the benefit 102
 See Memorandum of Petitioners, Rollo, pp. 863-864.
of the inhabitants thereof, except as provided by this Act.
103
 Sibal, Philippine Legal Encyclopedia, p. 893.
 McKinley’s Instructions to the Second Philippine Commission, in Mendoza,
95

From McKinley’s Instructions to the New Constitution: Documents on the 104

 Black's Law Dictionary, 5th ed., p. 1189.
Philippine Constitutional System (1978) p. 71.
105
 Ibid.
96
 Id., at 65-75; Section 5, Philippine Bill of 1902.
106
 4 Record of the Constitutional Commission 32.
97
 Solicitor General’s Memorandum, Rollo, p. 668-669.
107
 Id., at 37.
98
 Id, at 668.
108
 Solicitor General’s Memorandum, Rollo, p. 665.
99
 Section 1, Article XII, 1935 Constitution reads:
 Torres v. Tan Chim, 69 Phil 518 (1940); CIR v.Guerrero, 21 SCRA 180
109
All agricultural, timber, and mineral lands of the public domain, waters, minerals,
(1967).
coal, petroleum, and other mineral oils, all forces of potential energy, and other
natural resources of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens of the
110
 4 Record of the Constitutional Commission 36.
Philippines, or to corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing right, grant,
111
 See 1 COOLEY, CONST., LIMITATIONS, 8th ed., pp. 127-129.
lease, or concession at the time of the inauguration of the Government
established under this Constitution. Natural resources, with the exception of  See pp. 8-9 of this Opinion for the full text of the constitutional provisions
112

public agricultural land, shall not be alienated, and no license, concession, or mentioned.
lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable 113
 Section 1, Article XII provides:
The goals of the national economy are a more equitable distribution of grounds, burial grounds, worship areas, bodies of water, mineral and other
opportunities, income, and wealth; a sustained increase in the amount of natural resources, and lands which may no longer be exclusively occupied by
goods and services produced by the nation for the benefit of the people; and an ICCs/IPs but from which they traditionally had access to for their subsistence
expanding productivity as the key to raising the quality of life for all, especially and traditional activities, particularly the home ranges of ICCs/IPs who are still
the underprivileged. nomadic and/or shifting cultivators.

The State shall promote industrialization and full employment based on sound  Section 5. Indigenous Concept of Ownership- Indigenous concept of
119

agricultural development and agrarian reform, through industries that make full ownership sustains the view that ancestral domains and all resources found
and efficient use of human and natural resources, and which are competitive in therein shall serve as the material bases of their cultural integrity. The
both domestic and foreign markets. However, the State shall protect Filipino indigenous concept of ownership generally holds that ancestral domains are the
enterprises against unfair foreign competition and trade practices. ICCs/IPs private but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed. It likewise covers sustainable
In the pursuit of these goals, all sectors of the economy and all regions of the traditional resource rights.
country shall be given optimum opportunity to develop. Private enterprises,
including corporations, cooperatives and similar collective organizations, shall  Section 7. Rights to Ancestral Domains.—The rights of ownership and
120

be encouraged to broaden the base of their ownership. (Emphasis supplied.) possession of ICCs/IPs to their ancestral domains shall be recognized and
protected. Such rights shall include:
 Bernas, The Intent of the 1986 Constitution Writers, p. 800, citing the
114

sponsorship speech of Dr. Bernardo Villegas, Chairman of the Committee on (a) Right of Ownership. – The right to claim ownership over lands, bodies of
National Economy and Patrimony. water traditionally and actually occupied by ICCs/IPs, sacred places, traditional
hunting and fishing grounds, and all improvements made by them at any time
115
 4 Record of the Constitutional Commission 34. within the domains;

116
 Petition, Rollo, pp.18-19. (b) Right to Develop Lands and Natural Resources. – Subject to Section 56
hereof, right to develop, control and use lands and territories traditionally
117
 Id., at 20. occupied, owned, or used; to manage and conserve natural resources within the
territories and uphold the responsibilities for future generations; to benefit and
share the profits from allocation and utilization of the natural resources found
 Section 3. Definition of Terms. -For Purposes of this Act, the following terms
118
therein; the right to negotiate the terms and conditions for the exploration of
shall mean:
natural resources in the areas for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant to national
a) Ancestral Domains. -Subject to Section 56 hereof, refer to all areas generally and customary laws; the right to an informed and intelligent participation in the
belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and formulation and implementation of any project, government or private, that will
natural resources therein, held under a claim of ownership, occupied or affect or impact upon the ancestral domains and to receive just and fair
possessed by ICCs/IPs, by themselves or through their ancestors, communally compensation for any damages which they may sustain as a result of the
or individually since time immemorial, continuously to the present except when project; and the right to effective measures by the government to prevent any
interrupted by war, force majeure or displacement by force, deceit, stealth or as interference with, alienation and encroachment upon these rights; x x x
a consequence of government projects or any other voluntary dealings entered (Emphasis supplied.)
into by government and private individuals/corporations, and which are
necessary to ensure their economic, social and cultural welfare. It shall include 121
 Section 2, Article XII, Constitution.
ancestral lands, forests, pasture, residential, agricultural, and other lands,
individually owned whether alienable and disposable or otherwise, hunting
  Tolentino, Commentaries and Jurisprudence on the Civil Code of the
122
 Article I of the Decree of Superior Civil Government of January 29, 1864
132

Philippines, Vol. II, p. 42 (1983); see also Articles 427 and 428, Civil Code. provided that "The supreme ownership of mines throughout the kingdom belong
to the crown and the king. They shall not be exploited except by persons who
123
 Id., at 43. obtained special grant from this superior government and by those who may
secure it thereafter, subject to this regulation." (FRANCISCO, PHILIPPINE
124
 Section 5, R.A. 8371. LAWS ON NATURAL RESOURCES, 2nd ed. [1956], p. 14, citing the
unpublished case of Lawrence v. Garduno, G.R. No. 19042.)
125
 Ibid.
Article 2 of the Royal Decree of May 14, 1867 (the Spanish Mining Law), the law
in force at the time of the cession of the Philippines to the United States
 Should be Section 7. The Transcript of Session Proceedings of the
126
contained a similar declaration, thus:
deliberations of the Bicameral Conference Committee on National Cultural
Communities regarding House Bill No. 9125 refers to Section 8 but the
Committee was actually discussing Section 7 on Rights to Ancestral Domains. The ownership of the substances enumerated in the preceding article (among
them those of inflammable nature) belongs to the state, and they cannot be
disposed of without an authorization issued by the Superior Civil Governor.
 Transcript of Session Proceedings, Bicameral Conference Committee on
127

National Cultural Communities, October 9, 1997, XIV-2.

The Spanish Civil Code contained the following analogous provisions affirming
the State’s ownership over minerals:
128
 Sections 7 (b) and Section 57, R.A. 8371.
Art. 339. Property of public dominium is-
129
 40 Phil. 1017 (1909), 215 US 16, 54 L Ed 72.
xxx
 Ibid. The facts of the case were discussed in Fianza vs. Reavies, (7 Phil. 610
130

[1909]) thus: Jose Fianza, et al., members of the Igorot tribe, claimed that he
and his predecessors had, for more than fifty years prior to 1901, possessed a 2. That belonging exclusively to the State which, without being of general public
certain parcel of mineral land on which were found two gold mines. The same use, is employed in some public service, or in the development of the national
parcel of land was also claimed by an American, J.F. Reavies, who entered the wealth, such as walls, fortresses, and other works for the defense of the
land in 1901 and proceeded to locate mining claims according to the mining territory, and mines, until granted to private individuals.
laws of the United States. The Philippine Supreme Court held that Fianza, et al.
were the rightful owners of the mineral lands pursuant to Section 45 of the Art. 350. The proprietor of land is the owner of the surface and of everything
Philippine Bill of 1902 which in sum states that where a person have held or under it and may build, plant or excavate thereon, as he may see fit, subject to
worked on their mining claims for a period equivalent to ten years, evidence of any existing easements and to the provisions of the Laws on Mines and Waters
such possession and working of the claims for such period shall be sufficient to and to police regulations.
establish a right to a patent thereto. On appeal, the United States Supreme
Court affirmed the decision of the Philippine Supreme Court and held that the After the Philippines was ceded to Spain, the Americans continued to adhere to
indigenous peoples were the rightful owners of the contested parcel of land, the concept of State-ownership of natural resources. However, the open and
stating that the possession and working by Fianza, et al. of the mining claim in free exploration, occupation and purchase of mineral deposits and the land
the Philippine Islands for the time required under the Section 45 of the Philippine where they may be found were allowed under the Philippine Bill of 1902. Section
Bill of 1902 to establish the right to a patent, need not have been under a claim 21 thereof stated:
of title.
Sec. 21. That all valuable mineral deposits in public lands in the Philippine
131
 Memorandum of Intervenors Flavier, et al., Rollo, p. 918. Islands, both surveyed and unsurveyed, are hereby declared to be free and
open to exploration, occupation and purchase, and the land in which they are All agricultural, timber and mineral lands of the public domain, waters, minerals,
found, to occupation and purchase, by citizens of the United States, or of said coal, petroleum and other mineral oils, all forces of potential energy, and other
Islands: Provided, That when on any lands in said Islands entered and occupied natural resources of the Philippines belong to the State, and their disposition,
as agricultural lands under the provisions of this Act, but not patented, mineral exploitation, development, or utilization shall be limited to citizens of the
deposits have been found, the working of such mineral deposits is hereby Philippines, or to corporations or associations at least sixty per centum of the
forbidden until the person, association, or corporation who or which has entered capital of which is owned by such citizens, subject to any existing right, grant,
and is occupying such lands shall have paid to the Government of said Islands lease or concession at the time of the inauguration of the Government
such additional sum or sums as will make the total amount paid for the mineral established under this Constitution. Natural resources, with the exception of
claim or claims in which said deposits are located equal to the amount charged public agricultural land, shall not be alienated, and no license, concession, or
by the Government for the same as mineral claims. lease for the exploitation, or utilization of any of the natural resources shall be
granted for a period exceeding twenty-five years, renewable for another twenty
Other natural resources such as water and forests were similarly regarded as -five years, except as to water rights for irrigation, water supply, fisheries, or
belonging to the State during both the Spanish and American rule in the industrial uses other than the development of water power, in which cases
Philippines, viz: beneficial use may be the measure and the limit of the grant.

Article 33 of the Law of Waters of August 3, 1866 defined waters of public Section 8, Article XIV of the 1973 Constitution provided:
ownership as (1) the waters springing continuously or intermittently from lands of
the public domain; (2) the waters of rivers; and (3) the continuous or intermittent All lands of the public domain, waters, minerals, coal, petroleum and other
waters of springs and creeks running through their natural channels. mineral oils, all forces of potential energy, fisheries, wildlife, and other natural
resources of the Philippines belong to the State. With the exception of
Article 1 of the same law states: agricultural, industrial or commercial, residential, and resettlement lands of the
public domain, natural resources shall not be alienated, and no license,
The following are also part of the national domain open to public use: concession, or lease for the exploration, development, exploitation, or utilization
of any of the natural resources shall be granted for a period exceeding twenty-
five years, renewable for not more than twenty-five years, except as to water
1. The coasts or maritime frontiers of the Philippine territory with their coves,
rights for irrigation water supply, fisheries, or industrial uses other than the
inlets, creeks, roadsteads, bays and ports
development of water power, in which cases, beneficial use may be the
measure and limit of the grant.
2. The coast of the sea, that is, the maritime zone encircling the coasts, to the
full width recognized by international law. The state provides for and regulates 133
 Noblejas, Philippine Law on Natural Resources 1961 Revised Ed., p. 6
the police supervision and the uses of this zone as well as the right of refuge
and immunity therein, in accordance with law and international treaties.
 See Laurel (ed.), Proceedings of the Philippine Constitutional Convention,
134

Vol. VI, pp. 494-495.

With respect to forests, there are references made regarding State-ownership of
forest lands in Supreme Court decisions (See Director of Forestry vs. Munoz, 23
SCRA 1183, 1198-1199 [1968]; Director of Lands vs. Abanzado, 65 SCRA 5, 11  Explanatory Note of the Committee on Nationalization of Lands and Natural
135

[1975]; Mapa vs. Insular Government, 10 Phil. 175, 184 [1908]; Montano vs. Resources, September 14, 1934, reproduced in Laurel (ed.), Proceedings of the
Insular Government, 12 Phil 572, 584 [1909]). Philippine Constitutional Convention, Vol. VII, pp. 464-468; see also De Leon
and De Leon, Jr., Philippine Constitutional Law: Principles and Cases, Vol. 2,
pp. 801-802.
The State’s ownership over natural resources was embodied in the 1935, 1973
and 1987 Constitutions. Section 1, Article XII of the 1935 Constitution declared: 136
 Section 8, Article XIV, see note 139 for the full text of the provision.
137
 Paragraph 1, Section 2, Article XII of the 1987 Constitution provides: years renewable for not more than twenty-five (25) years: Provided, That a
formal and written agreement is entered into with the ICCs/IPs concerned or that
All lands of the public domain, waters, minerals, coal, petroleum, and other the community, pursuant to its own decision making process, has agreed to
minerals oils, all forces of potential energy, fisheries, forests or timber, wildlife, allow such operation: Provided, finally, That the NCIP may exercise visitorial
flora and fauna, and other natural resources are owned by the State. with the powers and take appropriate action to safeguard the rights of the ICCs/IPs
exception of agricultural lands, all other natural resources shall not be alienated. under the same contract.
The exploration, development, and utilization of natural resources shall be under
the full control and supervision of the State. The State may directly undertake 140
 Section 59. Certification Precondition - All departments and other
such activities, or it may enter into co-production, joint venture, or production- governmental agencies shall henceforth be strictly enjoined from issuing,
sharing agreements with Filipino citizens, or corporations and associations at renewing, or granting any concession, license or lease, or entering into any
least sixty per centum of whose capital is owned by such citizens. Such production-sharing agreement, without prior certification from the NCIP that the
agreements may be for a period not exceeding twenty-five years, renewable for area affected does not overlap with any ancestral domain. Such certification
not more than twenty-five years, and under such rights for irrigation, water shall only be issued after a field-based investigation is conducted by the
supply, fisheries, or industrial uses other than the development of water power, Ancestral Domains Office of the area concerned: Provided, That no
beneficial use may be the measure and limit of the grant. certification shall be issued by the NCIP without the free and prior
informed and written consent of Indigenous peoples
 Section 7. Rights to Ancestral Domains.—The rights of ownership and
138 concerned: Provided, further, That no department, government agency or
possession of ICCs/IPs to their ancestral domains shall be recognized and government-owned or controlled corporation may issue new concession,
protected. Such rights shall include: license, lease, or production sharing agreement while there is a pending
application for a CADT: Provided, finally, That the ICCs/IPs shall have the right
xxx to stop or suspend, in accordance with this Act, any project that has not satisfied
the requirement of this consultation process.
b) Right to Develop Lands and Natural Resources.- Subject to Section 56
hereof, right to develop, control and use lands and territories traditionally  Section 58. Environmental Considerations.- Ancestral domains or portions
141

occupied, owned, or used; to manage and conserve natural resources within thereof, which are found to be necessary for critical watersheds, mangroves,
the territories and uphold the responsibilities for future generations; to benefit wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as
and share the profits from allocation and utilization of the natural determined by appropriate agencies with the full participation of the Indigenous
resources found therein; the right to negotiate the terms and conditions peoples concerned shall be maintained, managed and developed for such
for the exploration of natural resources in the areas for the purpose of purposes. The Indigenous peoples concerned shall be given the
ensuring ecological, environmental protection and the conservation measures, responsibility to maintain, develop, protect and conserve such areas with
pursuant to national and customary laws; the right to an informed and intelligent the full and effective assistance of government agencies. Should the
participation in the formulation and implementation of any project, government or Indigenous peoples decide to transfer the responsibility over the areas, said
private, that will affect or impact upon the ancestral domains and to receive just decision must be made in writing. The consent of the Indigenous peoples should
and fair compensation for any damages which they may sustain as a result of be arrived at in accordance with its customary laws without prejudice to the
the project; and the right to effective measures by the government to prevent basic requirements of existing laws on free and prior informed consent:
any interference with, alienation and encroachment upon these rights; Provided, That the transfer shall be temporary and will ultimately revert to the
Indigenous peoples in accordance with the program for technology transfer;
Provided, further, That no Indigenous peoples shall be displaced or relocated for
 Section 57. Natural Resources within Ancestral Domains.-The ICCs/IPs shall
139
the purpose enumerated under this section without the written consent of the
have priority rights in the harvesting, extraction, development or exploitation of
specific persons authorized to give consent.
any natural resources within the ancestral domains. A non-member of the
ICCs/IPs concerned may be allowed to take part in the development and
utilization of the natural resources for a period of not exceeding twenty-five (25)
142
 Citing Section 2, Article XII of the Constitution.
143
 Memorandum of Petitioners, Id., at 840-841.  Republic Act No. 7076 (the Small-Scale Mining Act of 1991), Republic Act No.
150

7942 (the Philippine Mining Act of 1995).

 State v. Lathrop, 93 Ohio St 79, 112 NE 209, cited in 16 Am Jur 2d,
144

Constitutional Law, § 100.  Section 3(b) of R.A. 7076 defines "small-scale mining" as referring to mining
151

activities which rely heavily on manual labor using simple implements and
 Old Wayne Mutual Life Assn. v. McDonough, 204 US 8, 51 L Ed 345, cited in
145 methods and do not use explosives or heavy mining equipment.
16 Am Jur 2d Constitutional Law, § 100.
152
 Section 7, R.A. 7076 provides:
146
 Third paragraph, Section 2, Article XII, Constitution –
Ancestral lands. - No ancestral land may be declared as a people’s small-scale
The Congress may, by law, allow small scale-utilization of natural resources by mining area without the prior consent of the cultural communities
Filipino citizens, as well as cooperative fish farming, with priority to subsistence concerned: Provided, That, if ancestral lands are declared as peole’s small-
fishermen and fishworkers in rivers, lakes, bays, and lagoons. scale mining areas, the members of the cultural communities therein shall be
given priority for the awarding of a people’s small-scale mining contract.
147
 Section 6, Article XIII, Constitution –
153
 Section 16, R.A. 7492.
The State shall apply the principles of agrarian reform or stewardship, whenever
applicable in accordance with law, in the disposition and utilization of other
154
 Section 17, R.A. 7942.
natural resources, including lands of the public domain under lease or
concession suitable to agriculture, subject to prior rights, homestead rights of  Sec. 3(q), Chapter 1, Republic Act No. 7942 (the Philippine Mining Act of
155

small settlers, and the rights of the indigenous communities to their ancestral 1995).
lands.
156
 4 Record of the Constitutional Commission 37.
The State may resettle landless farmers and farmworkers in its own agricultural
estates which shall be distributed to them in the manner provided by law. 157
 Sections 7(a) and (b), R.A. 8371.
148
 Section 7, Article XIII, Constitution – 158
 Presidential Decree No. 1151 (1971).

The State shall protect the rights of subsistence fishermen, especially of local  Presidential Decree No. 1586 (1978) and DENR Administrative Order No. 37
159

communities, to the preferential use of the communal marine and fishing (1996).
resources, both inland and offshore. It shall provide support to such fishermen
through appropriate technology and research, adequate financial, production, 160
 Republic Act No. 7160 (1991).
and marketing assistance, and other services. The State shall also protect,
develop, and conserve such resources. The protection shall extend to offshore 161
 Republic Act No. 7942.
fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers
shall receive a just share from their labor in the utilization of marine and fishing
resources.
162
 Petition, Rollo, pp. 23-25.

 Bower v. Big Horn Canal Assn. (Wyo) 307 P2d 593, cited in 16 Am Jur 2d
149
163
 Ramirez v. CA, 248 SCRA 590, 596 (1995).
Constitutional Law, § 100.
164
 Section 53 (f), R.A. 8371.
165
 Section 52, R.A. 8371. 172
 Memorandum of Petitioners, Rollo ,pp. 873-874.

166
 Section 53, R.A. 8371.  Section 3 (f). Customary Laws - refer to a body of written and/or unwritten
173

rules, usages, customs and practices traditionally and continually recognized,

167
 Sections 40, 51, 52, 53, 54, 62 and 66, R.A. No. 8371. accepted and observed by respective ICCs/IPs;

168
 Sections 63 and 65, R.A. No. 8371. xxx

 Section 40. Composition.- The NCIP shall be an independent agency under

169 Sec. 63. Applicable Laws. - Customary laws, traditions and practices of the
the Office of the President and shall be composed of seven (7) Commissioners ICCs/IPs of the land where the conflict arises shall be applied first with respect
belonging to the ICCs/IPs, one (1) of whom shall be the Chairperson. The to property rights, claims and ownerships, hereditary succession and settlement
Commissioners shall be appointed by the President of the Philippines from a list of land disputes. Any doubt or ambiguity in the application and interpretation of
of recommendees submitted by authentic ICCs/IPs: Provided, That the seven laws shall be resolved in favor of the ICCs/IPs.
(7) Commissioners shall be appointed specifically from each of the following
ethnographic areas, Region I and the Cordilleras; Region II, the rest of Luzon;  Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve
174

Island Groups including Mindoro, Palawan, Romblon, Panay and the rest of the ICCs/IPs, customary laws and practices shall be used to resolve the dispute.
Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao;
and Central Mindanao: Provided, That at least two (2) of the seven (7) 175
 Memorandum of Petitioners, Rollo, pp.875-876.
Commissioners shall be women.
176
 R.A. 8371 states:
 Section 66. Jurisdiction of the NCIP.- The NCIP, through its regional offices,
170

shall have jurisdiction over all claims and disputes involving rights of ICCs/IPs. Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve
Provided, however, That no such dispute shall be brought to the NCIP unless ICCs/IPs, customary laws and practices shall be used to resolve the dispute.
the parties have exhausted all remedies provided under their customary laws.
For this purpose, a certification shall be issued by the Council of Elders/Leaders 177
 See Secs. 62 and 63, R.A. 8371.
who participated in the attempt to settle the dispute that the same has not been
resolved, which certification shall be a condition precedent to the filing of a
petition with the NCIP.
178
 Sec. 65, R.A. 8371.

 Section 62. Resolution of Conflicts.- In cases of conflicting interest, where

171
179
 The Civil Code provides:
there are adverse claims within the ancestral domains as delineated in the
survey plan, and which can not be resolved, the NCIP shall hear and decide, Article 12. A custom must be proved as a fact, according to the rules of
after notice to the proper parties, the disputes arising from the delineation of evidence.
such ancestral domains: Provided, That if the dispute is between and/or among
ICCs/IPs regarding the traditional boundaries of their respective ancestral 180
 The Civil Code provides:
domains, customary process shall be followed. The NCIP shall promulgate the
necessary rules and regulations to carry out its adjudicatory functions: Provided, Article 11. Customs which are contrary to law, public order or public policy shall
further, That any decision, order, award or ruling of the NCIP on any ancestral not be countenanced.180
domain dispute or on any matter pertaining to the application, implementation,
enforcement and interpretation of this Act may be brought for Petition for Review 181
 R.A. No. 7160 reads:
to the Court of Appeals within fifteen (15) days from receipt of a copy thereof.
Sec. 399. Lupong Tagapamayapa. – 197
 R.A. 7942.

xxx 198
 Section 56, R.A. 8371.

(f) In barangays where majority of the inhabitants are members of indigenous

peoples, local systems of settling disputes of indigenous peoples, local systems The Lawphil Project - Arellano Law Foundation
of settling disputes through their councils of datus or elders shall be recognized
without prejudice to the applicable provisions of this Code.

182
 Sec. 38, R.A. 8371.

183
 Secs. 44 (a), (b), (c),(d), (f), (g), (h), (I), (j), (k), (l), (m), (n), (p), (q), R.A. 8371.

184
 Sec. 44 (o), R.A. 8371.

185
 Secs. 44 (e), 51-54, 62, R.A. 8371.

186
 1 Am Jur 2d, Administrative Law, § 55.

187
 Sec. 62, R.A. 8371.

 Sec. 17. The President shall have control of all the executive departments,
188

bureaus, and offices. He shall ensure that the laws be faithfully executed.

189
 Sec. 44 (f), R.A. 8371.

190
 Sec. 44 (g), R.A, 8371.

191
 Sec. 44 (j), R.A. 8371.

192
 Sec. 44 (p), R.A. 8371.

193
 Sec. 40, R.A. 8371.

194
 Sec. 42, R.A. 8371.

195
 Supra note 75.

196
 R.A. 7076.
 The statement is based on the ruling of the Court in Lansang v. Garcia,3 in
which this Court, adopting the submission of the Solicitor General, formulated
SEPARATE OPINION the following test of its jurisdiction in such cases:

MENDOZA, J.: [J]udicial inquiry into the basis of the questioned proclamation can go no
further than to satisfy the Court not that the President’s decision is correct and
This suit was instituted to determine the constitutionality of certain provisions of that public safety was endangered by the rebellion and justified the suspension
R.A. No. 8371, otherwise known as the Indigenous Peoples Rights Act. of the writ, but that in suspending the writ, the President did not act arbitrarily.
Petitioners do not complain of any injury as a result of the application of the
statute to them. They assert a right to seek an adjudication of constitutional That is why Art. VII, §18 now confers on any citizen standing to question the
questions as citizens and taxpayers, upon the plea that the questions raised are proclamation of martial law or the suspension of the privilege of the writ of
of "transcendental importance." habeas corpus. It is noteworthy that Chief Justice Roberto Concepcion, who
chaired the Committee on the Judiciary of the Constitutional Commission, was
The judicial power vested in this Court by Art. VIII, §1 extends only to cases and the author of the opinions of the Court in Lopez v. Roxas and Lansang v.
controversies for the determination of such proceedings as are established by Garcia.
law for the protection or enforcement of rights, or the prevention, redress or
punishment of wrongs.1 In this case, the purpose of the suit is not to enforce a Indeed, the judicial power cannot be extended to matters which do not involve
property right of petitioners against the government and other respondents or to actual cases or controversies without upsetting the balance of power among the
demand compensation for injuries suffered by them as a result of the three branches of the government and erecting, as it were, the judiciary,
enforcement of the law, but only to settle what they believe to be the doubtful particularly the Supreme Court, as a third branch of Congress, with power not
character of the law in question. Any judgment that we render in this case will only to invalidate statutes but even to rewrite them. Yet that is exactly what we
thus not conclude or bind real parties in the future, when actual litigation will would be permitting in this case were we to assume jurisdiction and decide
bring to the Court the question of the constitutionality of such legislation. Such wholesale the constitutional validity of the IPRA contrary to the established rule
judgment cannot be executed as it amounts to no more than an expression of that a party can question the validity of a statute only if, as applied to him, it is
opinion upon the validity of the provisions of the law in question. 2 unconstitutional. Here the IPRA is sought to be declared void on its face.

I do not conceive it to be the function of this Court under Art. VIII, §1 of the The only instance where a facial challenge to a statute is allowed is when it
Constitution to determine in the abstract whether or not there has been a grave operates in the area of freedom of expression. In such instance, the overbreadth
abuse of discretion amounting to lack or excess of jurisdiction on the part of the doctrine permits a party to challenge the validity of a statute even though as
legislative and executive departments in enacting the IPRA. Our jurisdiction is applied to him it is not unconstitutional but it might be if applied to others not
confined to cases or controversies. No one reading Art. VIII, §5 can fail to note before the Court whose activities are constitutionally protected. Invalidation of
that, in enumerating the matters placed in the keeping of this Court, it uniformly the statute "on its face" rather than "as applied" is permitted in the interest of
begins with the phrase "all cases. . . ." preventing a "chilling" effect on freedom of expression. But in other cases, even
if it is found that a provision of a statute is unconstitutional, courts will decree
The statement that the judicial power includes the duty to determine whether only partial invalidity unless the invalid portion is so far inseparable from the rest
there has been a grave abuse of discretion was inserted in Art. VIII, §1 not really of the statute that a declaration of partial invalidity is not possible.
to give the judiciary a roving commission to right any wrong it perceives but to
preclude courts from invoking the political question doctrine in order to evade For the Court to exercise its power of review when there is no case or
the decision of certain cases even where violations of civil liberties are alleged. controversy is not only to act without jurisdiction but also to run the risk that, in
adjudicating abstract or hypothetical questions, its decision will be based on
speculation rather than experience. Deprived of the opportunity to observe the
impact of the law, the Court is likely to equate questions of constitutionality with
questions of wisdom and is thus likely to intrude into the domain of legislation. such is interested in the execution of the laws." On the basis of this statement,
Constitutional adjudication, it cannot be too often repeated, cannot take place in he argues that petitioners have standing to bring these proceedings. 12
a vacuum.
In Severino v. Governor General,13 the question was whether mandamus lay to
Some of the brethren contend that not deciding the constitutional issues raised compel the Governor General to call a special election on the ground that it was
by petitioners will be a "galling cop out" 4 or an "advocacy of timidity, let alone his duty to do so. The ruling was that he did not have such a duty. On the other
isolationism."5 To decline the exercise of jurisdiction in this case is no more a hand, although mandamus was issued in Tanada v. Tuvera, it was clear that
"cop out" or a sign of "timidity" than it was for Chief Justice Marshall in Marbury petitioners had standing to bring the suit, because the public has a right to know
v. Madison6 to hold that petitioner had the right to the issuance of his and the failure of respondents to publish all decrees and other presidential
commission as justice of the peace of the District of Columbia only to declare in issuances in the Official Gazette placed petitioners in danger of violating those
the end that after all mandamus did not lie, because §13 of the Judiciary Act of decrees and issuances. But, in this case, what public right is there for petitioners
1789, which conferred original jurisdiction on the United States Supreme Court to enforce when the IPRA does not apply to them except in general and in
to issue the writ of mandamus, was unconstitutional as the court’s jurisdiction is common with other citizens.
mainly appellate.
For the foregoing reasons I vote to dismiss the petition in this case.
Today Marbury v. Madison is remembered for the institution of the power of
judicial review, and so that there can be no doubt of this power of our Court, we
in this country have enshrined its principle in Art. VIII, §1. Now, the exercise of
judicial review can result either in the invalidation of an act of Congress or in Footnotes
upholding it. Hence, the checking and legitimating functions of judicial review so
well mentioned in the decisions7 of this Court. 1
 Lopez v. Roxas, 17 SCRA 756, 761 (1966).
To decline, therefore, the exercise of jurisdiction where there is no genuine 2
 Muskrat v. United States, 279 U.S. 346, 55 L.Ed. 246 (1911).
controversy is not to show timidity but respect for the judgment of a coequal
department of government whose acts, unless shown to be clearly repugnant to
the fundamental law, are presumed to be valid. The polestar of constitutional
3
 42 SCRA 448, 481 (1971) (emphasis on the original).
adjudication was set forth by Justice Laurel in the Angara case when he said
that "this power of judicial review is limited to actual cases and controversies to
4
 Panganiban, J., Separate Opinion, p. 2.
be exercised after full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota, presented."8 For the 5
 Vitug, J., Separate Opinion, p. 1.
exercise of this power is legitimate only in the last resort, and as a necessity in
the determination of real, earnest, and vital controversy between 6
 1 Cranch 137, 2 L.Ed. 60 (1803).
individuals.9 Until, therefore, an actual case is brought to test the constitutionality
of the IPRA, the presumption of constitutionality, which inheres in every statute,  Occeña v. Commission on Elections; Gonzales v. The National Treasurer, 104
7

must be accorded to it. SCRA 1 (1981); Mitra v. Commission on Elections, 104 SCRA 59 (1981).

Justice Kapunan, on the other hand, cites the statement in Severino v. Governor 8
 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
General,10 reiterated in Tanada v. Tuvera,11 that "when the question is one of
public right and the object of mandamus to procure the enforcement of a public 9
 Philippine Association of Colleges and Universities v. Secretary of Education,
duty, the people are regarded as the real party in interest, and the relator at 97 Phil. 806 (1955).
whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient that he is a citizen and as 10
 16 Phil. 366 (1913).
11
 136 SCRA 27 (1985).

12
 Kapunan, J., Separate Opinion, pp. 21-23.

13
 Supra note 10.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
(Concurring and Dissenting)

PANGANIBAN, J.:
I concur with the draft ponencia of Mr. Justice Santiago M. Kapunan in its well- development and utilization of natural resources. Such privileges, however, must
crafted handling of the procedural or preliminary issues. In particular, I agree be subject to the fundamental law.
that petitioners have shown an actual case or controversy involving at least two
constitutional questions of transcendental importance, 1 which deserve judicious Consistent with the social justice principle of giving more in law to those who
disposition on the merits directly by the highest court of the land. 2 Further, I am have less in life, Congress in its wisdom may grant preferences and
satisfied that the various aspects of this controversy have been fully presented prerogatives to our marginalized brothers and sisters, subject to the irreducible
and impressively argued by the parties. Moreover, prohibition and mandamus caveat that the Constitution must be respected. I personally believe in according
are proper legal remedies 3 to address the problems raised by petitioners. In any every benefit to the poor, the oppressed and the disadvantaged, in order to
event, this Court has given due course to the Petition, heard oral arguments and empower them to equally enjoy the blessings of nationhood. I cannot, however,
required the submission of memoranda. Indeed, it would then be a galling agree to legitimize perpetual inequality of access to the nation's wealth or to
copout for us to dismiss it on mere technical or procedural grounds. stamp the Court's imprimatur on a law that offends and degrades the repository
of the very authority of this Court - the Constitution of the Philippines.
Protection of Indigenous Peoples’ Rights Must Be Within the Constitutional
Framework The Constitution Is a Compact

With due respect, however, I dissent from the ponencia’s resolution of the two My basic premise is that the Constitution is the fundamental law of the land, to
main substantive issues, which constitute the core of this case. Specifically, I which all other laws must conform. 5 It is the people's quintessential act of
submit that Republic Act (RA) No. 8371, otherwise known as the Indigenous sovereignty, embodying the principles upon which the State and the government
Peoples’ Rights Act (IPRA) of 1997, violates and contravenes the Constitution of are founded.6 Having the status of a supreme and all-encompassing law, it
the Philippines insofar as - speaks for all the people all the time, not just for the majority or for the minority
at intermittent times. Every constitution is a compact made by and among the
1. It recognizes or, worse, grants rights of ownership over "lands of the public citizens of a State to govern themselves in a certain manner. 7 Truly, the
domain, waters, x x x and other natural resources" which, under Section 2, Philippine Constitution is a solemn covenant made by all the Filipinos to govern
Article XII of the Constitution, "are owned by the State" and "shall not be themselves. No group, however blessed, and no sector, however distressed, is
alienated." I respectfully reject the contention that "ancestral lands and ancestral exempt from its compass.
domains are not public lands and have never been owned by the State." Such
sweeping statement places substantial portions of Philippine territory outside the RA 8371, which defines the rights of indigenous cultural communities and
scope of the Philippine Constitution and beyond the collective reach of the indigenous peoples, admittedly professes a laudable intent. It was primarily
Filipino people. As will be discussed later, these real properties constitute a third enacted pursuant to the state policy enshrined in our Constitution to "recognize
of the entire Philippine territory; and the resources, 80 percent of the nation's and promote the rights of indigenous cultural communities within the framework
natural wealth. of national unity and development." 8 Though laudable and well-meaning, this
statute, however, has provisions that run directly afoul of our fundamental law
2. It defeats, dilutes or lessens the authority of the State to oversee the from which it claims origin and authority. More specifically, Sections 3(a) and (b),
"exploration, development, and utilization of natural resources," which the 5, 6, 7(a) and (b), 8 and other related provisions contravene the Regalian
Constitution expressly requires to "be under the full control and supervision of Doctrine - the basic foundation of the State's property regime.
the State."
Public Domains and Natural Resources Are Owned by the State and Cannot Be
True, our fundamental law mandates the protection of the indigenous cultural Alienated or Ceded
communities’ right to their ancestral lands, but such mandate is "subject to the
provisions of this Constitution."4 I concede that indigenous cultural communities Jura regalia was introduced into our political system upon the "discovery" and
and indigenous peoples (ICCs/IPs) may be accorded preferential rights to the the "conquest" of our country in the sixteenth century. Under this concept, the
beneficial use of public domains, as well as priority in the exploration, entire earthly territory known as the Philippine Islands was acquired and held by
the Crown of Spain. The King, as then head of State, had the supreme power or The concept was carried over in the 1973 and the 1987 Constitutions. Hence,
exclusive dominion over all our lands, waters, minerals and other natural Sections 8 and 9, Article XIV of the 1973 Constitution, state:
resources. By royal decrees, though, private ownership of real property was
recognized upon the showing of (1) a title deed; or (2) ancient possession in the "SEC. 8. All lands of the public domain, waters, minerals, coal, petroleum and
concept of owner, according to which a title could be obtained by other mineral oils, all forces of potential energy, fisheries, wildlife, and other
prescription.9 Refusal to abide by the system and its implementing laws meant natural resources of the Philippines belong to the State. With the exception of
the abandonment or waiver of ownership claims. agricultural, industrial or commercial, residential, and resettlement lands of the
public domain, natural resources shall not be alienated and no license,
By virtue of the 1898 Treaty of Paris, the Philippine archipelago was ceded to concession, or lease for the exploration, development, exploitation, utilization of
the United States. The latter assumed administration of the Philippines and any of the natural resources shall be granted for a period exceeding twenty-five
succeeded to the property rights of the Spanish Crown. But under the Philippine years, renewable for not more than twenty-five years, except as to water rights
Bill of 1902, the US Government allowed and granted patents to Filipino and US for irrigation, water supply, fisheries, or industrial uses other than the
citizens for the "free and open x x x exploration, occupation and purchase [of development of water power, in which cases beneficial use may be the measure
mines] and the land in which they are found." 10 To a certain extent, private and the limit of the grant.
individuals were entitled to own, exploit and dispose of mineral resources and
other rights arising from mining patents. SEC. 9. The disposition, exploration, development, exploitation, or utilization of
any of the natural resources of the Philippines shall be limited to citizens of the
This US policy was, however, rejected by the Philippine Commonwealth in 1935 Philippines, or to corporations or associations at least sixty per centum of the
when it crafted and ratified our first Constitution. Instead, the said Constitution capital of which is owned by such citizens. The National Assembly, in the
embodied the Regalian Doctrine, which more definitively declared as belonging national interest, may allow such citizens, corporations, or associations to enter
to the State all lands of the public domain, waters, minerals and other natural into service contracts for financial, technical, management, or other forms of
resources.11 Although respecting mining patentees under the Philippine Bill of assistance with any foreign person or entity for the exploration, development,
1902, it restricted the further exploration, development and utilization of natural exploitation, or utilization of any of the natural resources. Existing valid and
resources, both as to who might be entitled to undertake such activities and for binding service contracts for financial, technical, management, or other forms of
how long. The pertinent provision reads: assistance are hereby recognized as such."

"SECTION 1 [Art. XIII]. All agricultural, timber, and mineral lands of the public Similarly, Section 2, Article XII of the 1987 Constitution, provides:
domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, and other natural resources of the Philippines belong to the "SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and
State, and their disposition, exploitation, development, or utilization shall be other mineral oils, all forces of potential energy, fisheries, forests or timber,
limited to citizens of the Philippines, or to corporations or associations at least wildlife, flora and fauna, and other natural resources are owned by the State.
sixty per centum of the capital of which is owned by such citizens, subject to any With the exception of agricultural lands, all other natural resources shall not be
existing right, grant, lease, or concession at the time of the inauguration of the alienated. The exploration, development, and utilization of natural resources
Government established under this Constitution. Natural resources, with the shall be under the full control and supervision of the State. The State may
exception of public agricultural land, shall not be alienated, and license, directly undertake such activities, or it may enter into co-production, joint
concession, or lease for the exploitation, development, or utilization of any of the venture, or production-sharing agreements with Filipino citizen, or corporations
natural resources shall be granted for a period exceeding twenty-five years, or associations at least sixty per centum of whose capital is owned by such
renewable for another twenty-five years, except as to water rights for irrigation, citizens. Such agreements may be for a period not exceeding twenty-five years,
water supply, fisheries, or industrial uses other than the development of water renewable for not more than twenty-five years, and under such terms and
power, in which cases beneficial use may be the measure and the limit of the conditions as may be provided by law. In cases of water rights for irrigation,
grant." water supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.
"The State shall protect the nation's marine wealth in its archipelagic waters, "SEC. 3. Lands of the public domain are classified into agricultural, forest or
territorial sea, and exclusive economic zone, and reserve its use and enjoyment timber, mineral lands, and national parks. Agricultural lands of the public domain
exclusively to Filipino citizens. may be further classified by law according to the uses to which they may be
devoted. Alienable lands of the public domain shall be limited to agricultural
"The Congress may, by law, allow small-scale utilization of natural resources by lands. Private corporations or associations may not hold such alienable lands of
Filipino citizens, as well as cooperative fish farming, with priority to subsistence the public domain except by lease, for a period not exceeding twenty-five years,
fishermen and fish workers in rivers, lakes, bays and lagoons. renewable for not more than twenty-five years, and not to exceed one thousand
hectares in area. x x x."
"The President may enter into agreements with foreign-owned corporations
involving either technical or financial assistance for large-scale exploration, Mr. Justice Kapunan upholds private respondents and intervenors in their claim
development, and utilization of minerals, petroleum, and other mineral oils that all ancestral domains and lands are outside the coverage of public domain;
according to the general terms and conditions provided by law, based on real and that these properties - including forests, bodies of water, minerals and parks
contributions to the economic growth and general welfare of the country. In such found therein - are private and have never been part of the public domain,
agreements, the State shall promote the development and use of local scientific because they have belonged to the indigenous people’s ancestors since time
and technical resources. immemorial.

"The President shall notify the Congress of every contract entered into in I submit, however, that all Filipinos, whether indigenous or not, are subject to the
accordance with this provision, within thirty days from its execution." Constitution. Indeed, no one is exempt from its all-encompassing provisions.
Unlike the 1935 Charter, which was subject to "any existing right, grant, lease or
The adoption of the Regalian Doctrine by the Philippine Commonwealth was concession," the 1973 and the 1987 Constitutions spoke in absolute terms.
initially impelled by the desire to preserve the nation's wealth in the hands of the Because of the State’s implementation of policies considered to be for the
Filipinos themselves. Nationalism was fervent at the time, and our constitutional common good, all those concerned have to give up, under certain conditions,
framers decided to embody the doctrine in our fundamental law. Charging the even vested rights of ownership.
State with the conservation of the national patrimony was deemed necessary for
Filipino posterity. The arguments in support of the provision are encapsulated by In Republic v. Court of Appeals, 14 this Court said that once minerals are found
Aruego as follows: "[T]he natural resources, particularly the mineral resources even in private land, the State may intervene to enable it to extract the minerals
which constituted a great source of wealth, belonged not only to the generation in the exercise of its sovereign prerogative. The land is converted into mineral
then but also to the succeeding generation and consequently should be land and may not be used by any private person, including the registered owner,
conserved for them."12 for any other purpose that would impede the mining operations. Such owner
would be entitled to just compensation for the loss sustained.
Thus, after expressly declaring that all lands of the public domain, waters,
minerals, all forces of energy and other natural resources belonged to the In Atok Big-Wedge Mining Company v. IAC, 15 the Court clarified that while
Philippine State, the Commonwealth absolutely prohibited the alienation of these mining claim holders and patentees have the exclusive right to the possession
natural resources. Their disposition, exploitation, development and utilization and enjoyment of the located claim, their rights are not absolute or strictly one of
were further restricted only to Filipino citizens and entities that were 60 percent ownership. Thus, failure to comply with the requirements of pertinent mining
Filipino-owned. The present Constitution even goes further by declaring that laws was deemed an abandonment or a waiver of the claim.
such activities "shall be under the full control and supervision of the State."
Additionally, it enumerates land classifications and expressly states that only Verily, as petitioners undauntedly point out, four hundred years of Philippine
agricultural lands of the public domain shall be alienable. We quote below the political history cannot be set aside or ignored by IPRA, however well-
relevant provision:13 intentioned it may be. The perceived lack of understanding of the cultural
minorities cannot be remedied by conceding the nation’s resources to their
exclusive advantage. They cannot be more privileged simply because they have
chosen to ignore state laws. For having chosen not to be enfolded by statutes In any event, if all that the ICCs/IPs demand is preferential use - not ownership -
on perfecting land titles, ICCs/IPs cannot now maintain their ownership of lands of ancestral domains, then I have no disagreement. Indeed, consistent with the
and domains by insisting on their concept of "native title" thereto. It would be Constitution is IPRA’s Section 57 19- without the too-broad definitions under
plain injustice to the majority of Filipinos who have abided by the law and, Section 3 (a) and (b) - insofar as it grants them priority rights in harvesting,
consequently, deserve equal opportunity to enjoy the country’s resources. extracting, developing or exploiting natural resources within ancestral domains.

Respondent NCIP claims that IPRA does not violate the Constitution, because it The concerted effort to malign the Regalian Doctrine as a vestige of the colonial
does not grant ownership of public domains and natural resources to ICCs/IPs. past must fail. Our Constitution vests the ownership of natural resources, not in
"Rather, it recognizes and mandates respect for the rights of indigenous peoples colonial masters, but in all the Filipino people. As the protector of the
over their ancestral lands and domains that had never been lands of the public Constitution, this Court has the sworn duty to uphold the tenets of that
domain."16 I say, however, that such claim finds no legal support. Nowhere in the Constitution - not to dilute, circumvent or create exceptions to them.
Constitution is there a provision that exempts such lands and domains from its
coverage. Quite the contrary, it declares that all lands of the public domain and Cariño v. Insular Government Was Modified by the Constitution
natural resources "are owned by the State"; and "with the exception of
agricultural lands, all other natural resources shall not be alienated." In this connection, I submit that Cariño v. Insular Government 20 has been
modified or superseded by our 1935, 1973 and 1987 Constitutions.
As early as Oh Cho v. Director of Lands, 17 the Court declared as belonging to Its ratio should be understood as referring only to a means by which public
the public domain all lands not acquired from the government, either by agricultural land may be acquired by citizens. I must also stress that the claim of
purchase or by grant under laws, orders or decrees promulgated by the Spanish Petitioner Cariño refers to land ownership only, not to the natural resources
government; or by possessory information under Act 496 (Mortgage Law). underneath or to the aerial and cosmic space above.

On the other hand, Intervenors Flavier et al. 18 differentiate the concept of Significantly, in Director of Land Management v. Court of Appeals, 21 a Decision
ownership of ICCs/IPs from that which is defined in Articles 427 and 428 of the handed down after our three Constitutions had taken effect, the Court rejected a
Civil Code. They maintain that "[t]here are variations among ethnolinguistic cultural minority member's registration of land under CA 141, Section 48
groups in the Cordillera, but a fair synthesis of these refers to ‘x x x the tribal (c).22 The reason was that the property fell within the Central Cordillera Forest
right to use the land or to territorial control x x x, a collective right to freely use Reserve. This Court quoted with favor the solicitor general’s following
the particular territory x x x [in] the concept of trusteeship.'" statements:

In other words, the "owner" is not an individual. Rather, it is a tribal community "3. The construction given by respondent Court of Appeals to the particular
that preserves the property for the common but nonetheless exclusive and provision of law involved, as to include even forest reserves as susceptible to
perpetual benefit of its members, without the attributes of alienation or private appropriation, is to unconstitutionally apply such provision. For, both the
disposition. This concept, however, still perpetually withdraws such property 1973 and present Constitutions do not include timber or forest lands as
from the control of the State and from its enjoyment by other citizens of the alienable. Thus, Section 8, Article XIV of 1973 Constitution states that ‘with the
Republic. The perpetual and exclusive character of private respondents’ claims exception of agricultural, industrial or commercial, residential and resettlement
simply makes them repugnant to basic fairness and equality. lands of the public domain, natural resources shall not be alienated.’ The new
Constitution, in its Article XII, Section 2, also expressly states that ‘with the
Private respondents and intervenors trace their "ownership" of ancestral exception of agricultural lands, all other natural resources shall not be
domains and lands to the pre-Spanish conquest. I should say that, at the time, alienated’."
their claims to such lands and domains was limited to the surfaces thereof since
their ancestors were agriculture-based. This must be the continuing scope of the Just recently, in Gordula v. Court of Appeals,23 the Court also stated that "forest
indigenous groups’ ownership claims: limited to land, excluding the natural land is incapable of registration, and its inclusion in a title nullifies that title. To
resources found within. be sure, the defense of indefeasiblity of a certificate of title issued pursuant to a
free patent does not lie against the state in an action for reversion of the land ancestral lands." Such ownership need not be by virtue of a certificate of title,
covered thereby when such land is a part of a public forest or of a forest but simply by possession since time immemorial.
reservation, the patent covering forest land being void ab initio."
I believe these statutory provisions directly contravene Section 2, Article XII of
RA 8371 Violates the Inalienability of Natural Resources and of Public Domains the Constitution, more specifically the declaration that the State owns all lands of
the public domain, minerals and natural resources – none of which, except
The ponencia theorizes that RA 8371 does not grant to ICCs/IPs ownership of agricultural lands, can be alienated. In several cases, this Court has consistently
the natural resources found within ancestral domains. However, a simple held that non-agricultural land must first be reclassified and converted into
reading of the very wordings of the law belies this statement. alienable or disposable land for agricultural purposes by a positive act of the
government.26 Mere possession or utilization thereof, however long, does not
Section 3 (a)24 defines and delineates ancestral domains as "all areas generally automatically convert them into private properties. 27 The presumption is that "all
belonging to ICCs/IPs comprising lands, inland waters, coastal areas, lands not appearing to be clearly within private ownership are presumed to
and natural resources therein, held under a claim of ownership, occupied or belong to the State. Hence, x x x all applicants in land registration proceedings
possessed by ICCs/IPs, by themselves or through their ancestors, communally have the burden of overcoming the presumption that the land thus sought to be
or individually since time immemorial, continuously to the present except when registered forms part of the public domain. Unless the applicant succeeds in
interrupted by war, force majeure or displacement x x x. It shall include ancestral showing by clear and convincing evidence that the property involved was
lands, forests, pasture, residential, agricultural, and other lands individually acquired by him or his ancestors either by composition title from the Spanish
owned whether alienable and disposable or otherwise, hunting grounds x x x Government or by possessory information title, or any other means for the
bodies of water, mineral and other natural resources x x x." (Emphasis ours.) proper acquisition of public lands, the property must be held to be part of the
public domain. The applicant must present competent and persuasive proof to
substantiate his claim; he may not rely on general statements, or mere
Clearly, under the above-quoted provision of IPRA, ancestral domains of
conclusions of law other than factual evidence of possession and title." 28
ICCs/IPs encompass the natural resources found therein. And Section 7
guarantees recognition and protection of their rights of ownership and
possession over such domains. Respondents insist, and the ponencia agrees, that paragraphs (a) and (b) of
Sections 3 are merely definitions and should not be construed independently of
the other provisions of the law. But, precisely, a definition is "a statement of the
The indigenous concept of ownership, as defined under Section 5 of the law,
meaning of a word or word group." 29 It determines or settles the nature of the
"holds that ancestral domains are the ICC’s/IP’s private but community property
thing or person defined. 30 Thus, after defining a term as encompassing several
which belongs to all generations and therefore cannot be sold, disposed or
items, one cannot thereafter say that the same term should be interpreted as
destroyed." Simply put, the law declares that ancestral domains, including the
excluding one or more of the enumerated items in its definition. For that would
natural resources found therein, are owned by ICCs/IPs and cannot be sold,
be misleading the people who would be bound by the law. In other words, since
disposed or destroyed. Not only does it vest ownership, as understood under the
RA 8371 defines ancestral domains as including the natural resources found
Civil Code; it adds perpetual exclusivity. This means that while ICCs/IPs could
therein and further states that ICCs/IPs own these ancestral domains, then it
own vast ancestral domains, the majority of Filipinos who are not indigenous can
means that ICCs/IPs can own natural resources.
never own any part thereof.
In fact, Intervenors Flavier et al. submit that everything above and below these
On the other hand, Section 3 (b)25 of IPRA defines ancestral lands as referring to
ancestral domains, with no specific limits, likewise belongs to ICCs/IPs. I say
"lands occupied, possessed and utilized by individuals, families and clans of the
that this theory directly contravenes the Constitution. Such outlandish contention
ICCs/IPs since time immemorial x x x, under claims of individual or traditional
further disregards international law which, by constitutional fiat, has been
group ownership, x x x including, but not limited to, residential lots, rice terraces
adopted as part of the law of the land.31
or paddies, private forests, swidden farms and tree lots." Section 8 recognizes
and protects "the right of ownership and possession of ICCs/IPs to their
No Land Area Limits Are Specified by RA 8371
Under Section 3, Article XII of the Constitution, Filipino citizens may acquire no RA 8371 Abdicates the State Duty to Take Full Control and Supervision of
more than 12 hectares of alienable public land, whether by purchase, Natural Resources
homestead or grant. More than that, but not exceeding 500 hectares, they may
hold by lease only. Section 2, Article XII of the Constitution, further provides that "[t]he exploration,
development, and utilization of natural resources shall be under the full control
RA 8371, however, speaks of no area or term limits to ancestral lands and and supervision of the State." The State may (1) directly undertake such
domains. In fact, by their mere definitions, they could cover vast tracts of the activities; or (2) enter into co-production, joint venture or production-sharing
nation's territory. The properties under the assailed law cover everything held, agreements with Filipino citizens or entities, 60 percent of whose capital is
occupied or possessed "by themselves or through their ancestors, communally owned by Filipinos.37 Such agreements, however, shall not exceed 25 years,
or individually since time immemorial." It also includes all "lands which may no renewable for the same period and under terms and conditions as may be
longer be exclusively occupied by [them] but from which they traditionally had provided by law.
access to for their subsistence and traditional activities, particularly the home
ranges of ICCs/IPs who are still nomadic and/or shifting cultivators." But again, RA 8371 relinquishes this constitutional power of full control in favor
of ICCs/IPs, insofar as natural resources found within their territories are
Nomadic groups have no fixed area within which they hunt or forage for food. As concerned. Pursuant to their rights of ownership and possession, they may
soon as they have used up the resources of a certain area, they move to develop and manage the natural resources, benefit from and share in the profits
another place or go back to one they used to occupy. From year to year, a from the allocation and the utilization thereof. 38 And they may exercise such right
growing tribe could occupy and use enormous areas, to which they could claim without any time limit, unlike non-ICCs/IPs who may do so only for a period not
to have had "traditional access." If nomadic ICCs/IPs succeed in acquiring title exceeding 25 years, renewable for a like period. 39 Consistent with the
to their enlarging ancestral domain or land, several thousands of hectares of Constitution, the rights of ICCs/IPs to exploit, develop and utilize natural
land may yet be additionally delineated as their private property. resources must also be limited to such period.

Similarly, the Bangsa Moro people's claim to their ancestral land is not based on In addition, ICCs/IPs are given the right to negotiate directly the terms and
compounded or consolidated title, but "on a collective stake to the right to claim conditions for the exploration of natural resources, 40 a right vested by the
what their forefathers secured for them when they first set foot on our Constitution only in the State. Congress, through IPRA, has in effect abdicated
country."32 They trace their right to occupy what they deem to be their ancestral in favor of a minority group the State's power of ownership and full control over a
land way back to their ancient sultans and datus, who had settled in many substantial part of the national patrimony, in contravention of our most
islands that have become part of Mindanao. This long history of occupation is fundamental law.
the basis of their claim to their ancestral lands.33
I make clear, however, that to the extent that ICCs/IPs may undertake small-
Already, as of June 1998, over 2.5 million hectares have been claimed by scale utilization of natural resources and cooperative fish farming, I absolutely
various ICCs/IPs as ancestral domains; and over 10 thousand hectares, as have no objection. These undertakings are certainly allowed under the third
ancestral lands.34 Based on ethnographic surveys, the solicitor general estimates paragraph of Section 2, Article XII of the Constitution.
that ancestral domains cover 80 percent of our mineral resources and between
8 and 10 million of the 30 million hectares of land in the country. 35 This means Having already disposed of the two major constitutional dilemmas wrought by
that four fifths of its natural resources and one third of the country's land will be RA 8371 – (1) ownership of ancestral lands and domains and the natural
concentrated among 12 million Filipinos constituting 110 ICCs, 36 while over 60 resources therein; and (2) the ICCs/IPs' control of the exploration, development
million other Filipinos constituting the overwhelming majority will have to share and utilization of such resources – I believe I should no longer tackle the
the remaining. These figures indicate a violation of the constitutional principle of following collateral issues petitioners have brought up:
a "more equitable distribution of opportunities, income, and wealth" among
Filipinos. 1. Whether the inclusion of private lands within the coverage of ancestral
domains amounts to undue deprivation of private property
2. Whether ICCs/IPs may regulate the entry/exit of migrants rights that the Constitution withholds from the rest of the Filipino people. I would
concede giving them priority in the use, the enjoyment and the preservation of
3. Whether ancestral domains are exempt from real property taxes, special their ancestral lands and domains. 41 But to grant perpetual ownership and
levies and other forms of exaction control of the nation's substantial wealth to them, to the exclusion of other
Filipino citizens who have chosen to live and abide by our previous and present
4. Whether customary laws and traditions of ICCs/IPs should first be applied in Constitutions, would be not only unjust but also subversive of the rule of law.
the settlements of disputes over their rights and claims
In giving ICCs/IPs rights in derogation of our fundamental law, Congress is
5. Whether the composition and the jurisdiction of the National Commission of effectively mandating "reverse discrimination." In seeking to improve their lot, it
Indigenous Peoples (NCIP) violate the due process and equal protection would be doing so at the expense of the majority of the Filipino people. Such
clauses short-sighted and misplaced generosity will spread the roots of discontent and,
in the long term, fan the fires of turmoil to a conflagration of national proportions.
6. Whether members of the ICCs/IPs may be recruited into the armed forces
against their will 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
I believe that the first three of the above collateral issues have been rendered
with the injured. Nor can the nation survive by enclaving its wealth for the
academic or, at least, no longer of "transcendental importance," in view of my
exclusive benefit of favored minorities.
contention 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 Rather, the law must help the powerless by enabling them to take advantage of
specific provisions of RA 8371. 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,
Epilogue
thus, equally enjoy the blessings of prosperity, freedom and dignity.
Section 5, Article XII of the Constitution, provides:
WHEREFORE, I vote to partially GRANT the Petition and
to DECLARE as UNCONSTITUTIONAL Sections 3(a) and (b), 5, 6, 7(a) and (b),
"SEC. 5. The State, subject to the provisions of this Constitution and national 8 and related provisions of RA 8371.
development policies and programs, shall protect the rights of indigenous
cultural communities to their ancestral lands to ensure their economic, social,
and cultural well being.
Footnotes
"The Congress may provide for the applicability of customary laws governing
property rights and relations in determining the ownership and extent of
ancestral domain."
1
 Kilosbayan v. Morato, 250 SCRA 130, 140, November 16, 1995; Association of
Small Landowners v. Secretary of Agrarian Reform, 175 SCRA 343, 365, July
14, 1989; Antonio v. Dinglasan, 84 Phil 368 (1949).
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 and programs.  Tañada v. Angara, 272 SCRA 18, 46, May 2, 1997; Santiago v. Comelec, 270
2

SCRA 106, 123-24, March 19, 1997; Basco v. PAGCOR, 197 SCRA 52, 60,
May 14, 1991.
Indigenous peoples may have long been marginalized in Philippine politics and
society. This does not, however, give Congress any license to accord them
3
 Tanada v. Angara, ibid.  "SEC. 57. Natural Resources within Ancestral Domains. – The ICCs/IPs shall
19

have priority rights in the harvesting, extraction, development or exploitation of

4
 §5, Art. XII, 1987 Constitution. any natural resources within the ancestral domains. x x x."

5
 16 CJS §3.
20
 41 Phil 935, February 23, 1909.

6
 16 Am Jur 2d §2.
21
 172 SCRA 455, 463, April 18, 1989, per Gutierrez Jr., J.

7
 Ibid.
22
 "(c) Members of the national cultural minorities who by themselves or through
their predecessors-in-interest have been in open, continuous, exclusive and
8
 §22, Art. II of the Constitution. notorious possession and occupation of lands of the public domain suitable to
agriculture, whether disposable or not, under a bona fide claim of ownership for
at least 30 years shall be entitled to the rights granted in subsection (b) hereof.
 Abaoag v. Director of Lands, 45 Phil 518 (1923), cited in petitioners'
9
(As amended by R.A. No. 3872, section 1, approved June 18, 1964)."
Memorandum.
23
 284 SCRA 617, 633, January 22, 1998, per Puno, J.
 Soledad M. Cagampang-de Castro, "The Economic Policies on Natural
10

Resources Under the 1987 Constitution Revisited," Journal of the Integrated Bar

of the Philippines, Vol. XXV, Nos. 3 & 4 (1999), p. 51.
24
 "a) Ancestral Domains - Subject to Section 56 hereof, refers to all areas
generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas,
and natural resources therein, held under a claim of ownership, occupied or
 In a republican system of government, the concept of jura regalia is stripped of
11
possessed by ICCs/IPs, by themselves or through their ancestors, communally
royal overtones; ownership is vested in the State, instead. (Joaquin G. Bernas,
or individually since time immemorial, continuously to the present except when
SJ, The Constitution of the Republic of the Philippines: A Commentary, 1996
interrupted by war, force majeure or displacement by force, deceit, stealth or as
ed., p. 1009-1010.)
a consequence of government projects or any other voluntary dealings entered
into by government and private individuals/corporations, and which are
 II Aruego, The Framing of the Philippine Constitution 603, quoted in
12
necessary to ensure their economic, social and cultural welfare. It shall include
Bernas, supra, p. 1010. ancestral lands individually owned whether alienable and disposable or
otherwise, hunting grounds, burial grounds, worship areas, bodies of water,
13
 §3, Art. XII, 1987 Constitution. mineral and other natural resources, and lands which may no longer be
exclusively occupied by ICCs/IPs but from which they traditionally had access to
14
 160 SCRA 228, 239, April 15, 1988. for their subsistence and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators."
15
 261 SCRA 528, September 9, 1996.
25
 "b) Ancestral Lands - Subject to Section 56 hereof, refers to lands occupied,
16
 NCIP’s Memorandum, p. 24. possessed and utilized by individuals, families and clans who are members of
the ICCs/IPs since time immemorial, by themselves or through their
17
 75 Phil 890, 892, August 31, 1946. predecessors-in-interest, under claims of individual or traditional group
ownership, continuously, to the present except when interrupted by war, force
18
 Intervenors’ Memorandum, pp. 33 et seq. majeure or displacement by force, deceit, stealth, or as a consequence of
government projects and other voluntary dealings entered into by government
and private individuals/corporations, including, but not limited to, residential lots,
rice terraces or paddies, private forests, swidden farms and tree lots."
  Director of Lands and Director of Forest Development v. Intermediate
26 40
 §7(b), ibid.
Appellate Court, March 2, 1993; Director of Lands v. Aquino, 192 SCRA 296,
December 17, 1990; Sunbeam Convenience Foods, Inc. v. Court of  As stated earlier, Sec. 57 of IPRA, insofar as it grants them such priority, is
41

Appeals, January 29, 1990. constitutional.

 Ibid., Margolles v. Court of Appeals, February 14, 1994; Gordula v. Court of

27

Appeals, supra.

 Republic v. Sayo, October 31, 1990, per Narvasa, J. (later CJ). See

28

also Republic v. Court of Appeals, supra.

29
 Webster’s Third New International Dictionary; Petitioners’ Memorandum, p. 41.

30
 Ibid.

31
 §2, Art. II of the Constitution.

32
 Cecilio R. Laurente, "The King's Hand: The Regalian Doctrine as a
Contributing Factor in the Mindanao Conflict," Human Rights Agenda, Vol. 5,
Issue No. 7, July & August 2000, pp. 6-7.

33
 Ibid.

34
 Solicitor General's Memorandum, p. 3; rollo, p. 651.

35
 Ibid., pp. 4-5.

 Ibid. See also Datu Vic Saway, "Indigenous Peoples and the Uplands: A

36

Situationer," Proceedings of the 6th Upland NGO Consultative Conference, 23-

27 August 1998, p. 30.

 Or (3) in case of large-scale exploration, development and utilization of

37

minerals, enter – through the President – into "agreements with foreign-owned

corporations involving either technical or financial assistance." (Miners
Association of the Philippines v. Factoran Jr., 240 SCRA 100, January 16,
1995.)

38
 §7(b), RA 7381.

39
 §57, ibid.