SEPARATE OPINION

PUNO, J.:

PRECIS

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

"Law is the most historically oriented, or if you like the most backward-looking, the most 'past-dependent,' of the professions.  It venerates tradition, precedent, pedigree, ritual, custom, ancient practices, ancient texts, archaic terminology, maturity, wisdom, seniority, gerontocracy, and interpretation conceived of as a method of recovering history.  It is suspicious of innovation, discontinuities, '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 come to terms with history.”

When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into the Philippine legal system which appear to collide with settled constitutional and jural precepts on state ownership of land and other natural resources.  The sense and subtleties of this law cannot be appreciated without considering its distinct sociology and the labyrinths of its 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 to fulfill the constitutional mandate of protecting the indigenous cultural communities' right to their ancestral land but more importantly, to correct a grave historical injustice to our indigenous people.

This Opinion discusses the following:

I.  The Development of the Regalian Doctrine in the Philippine Legal System.

A.  The Laws of the Indies

B.  Valenton v. Murciano

C.  The Public Land Acts and the Torrens System

D.  The Philippine Constitutions

II.  The Indigenous Peoples Rights Act (IPRA).

A. Indigenous Peoples

1. Indigenous Peoples: Their History

2. Their Concept of Land

III.  The IPRA is a Novel Piece of Legislation.

A. Legislative History

IV.  The Provisions of the IPRA Do Not Contravene the Constitution.

A. Ancestral domains and ancestral lands are the private property of indigenous peoples and do not constitute part of the land of the public domain.

1. The right to ancestral domains and ancestral lands: how acquired

2. The concept of native title

(a) Cariño v. Insular Government

(b) Indian Title to land

(c) Why the Cariño doctrine is unique

3. The option of securing a torrens title to the ancestral land

B.        The right of ownership and possession by the ICCs/IPs to their ancestral domains is a limited form of ownership and does not include the right to alienate the same.

1. The indigenous concept of ownership and customary law

C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in Section 2, Article XII of the 1987 Constitution.

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

2. The right of ICCs/IPs to develop lands and natural resources within the ancestral domains does not deprive the State of ownership over the natural resources, control and supervision in their development and exploitation.

(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of Section 7(a) of the law on ownership of ancestral domains and is ultra vires.

(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA is allowed under Paragraph 3, Section 2, Article XII of the 1987 Consitution.

(c) The large-scale utilization of natural resources in Section 57 of the IPRA may be harmonized with Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.

V.  The IPRA is a Recognition of Our Active Participation in the International Indigenous Movement.

DISCUSSION

I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.

A. The Laws of the Indies

The capacity of the State to own or acquire property is the state's power of dominium.[3] This was the foundation for the early Spanish decrees embracing the feudal theory of jura regalia.  The "Regalian Doctrine" or jura regalia is a Western legal concept that was first introduced by the Spaniards into the 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 Recopilacion de Leyes de las Indias, set the policy of the Spanish Crown with respect to the Philippine Islands in the following manner:

"We, having acquired full sovereignty over the Indies, and all lands, territories, 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 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 our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in those places which are peopled, taking into consideration not only their present condition, but also their future and their probable increase, and after distributing to the natives what may be 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 unencumbered for us to dispose of as we may wish.

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 period within which all possessors of tracts, farms, plantations, and estates shall 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 and receipts, or by virtue of just prescriptive right shall be protected, and all the rest shall be restored to us to be disposed of at our will."[4]

The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands became the exclusive patrimony and dominion of the Spanish Crown.  The Spanish Government took charge of distributing the lands by issuing royal grants and concessions to Spaniards, both military and civilian.[5] Private land titles could only be acquired from the government either by purchase or by the various modes of land grant from the Crown.[6]

The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.[7] The Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as possessory claims.  The law sought to register and tax lands pursuant to the Royal Decree of 1880.  The Royal Decree of 1894, or the "Maura Law," was partly an amendment of the Mortgage Law as well as the Laws of the Indies, as already amended by previous orders and decrees.[8] This was the last Spanish land law promulgated in the Philippines.  It required the "adjustment" or registration of all agricultural lands, otherwise the lands shall revert to the state.

Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of the United States all rights, interests and claims over the national territory of the Philippine Islands.  In 1903, the United States colonial government, through the Philippine Commission, passed Act No. 926, the first Public Land Act.

B. Valenton v. Murciano

In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.[9]

Valenton resolved the question of which is the better basis for ownership of land:  long-time occupation or paper title.  Plaintiffs had entered into peaceful occupation of the subject land in 1860.  Defendant's predecessor-in-interest, on the other hand, purchased the land from the provincial treasurer of Tarlac in 1892.  The lower court ruled against the plaintiffs on the ground that they had lost 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 extraordinary period of prescription in the Partidas and the Civil Code, had given them title to the land as against everyone, including the State; and that the State, not owning the land, could not validly transmit it.

The Court, speaking through Justice Willard, decided the case on the basis of "those special laws which from earliest time have regulated the disposition of the public lands in the colonies."[10] The question posed by the Court was:  "Did these special laws recognize any right of prescription as against the State as to these lands; and if so, to what extent was it recognized?"

Prior to 1880, the Court said, there were no laws specifically providing for the 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 would be followed.  Indeed, in the Royal Order of July 5, 1862, it was decreed that until regulations on the subject could be prepared, the authorities of the Philippine Islands should follow strictly the Laws of the Indies, the Ordenanza of the Intendentes of 1786, and the Royal Cedula of 1754.[11]

Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the court interpreted it as follows:

"In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the Crown which have not been granted by Philip, or in his name, or by the kings who preceded him.  This statement excludes the idea 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 lands, because some private person had been in the adverse occupation of them.  By the mandatory part of the law all the occupants of the public lands are required to produce before the authorities named, and within a time to be fixed by them, their title papers.  And those who had good title or showed prescription were to be protected in their holdings.  It is apparent that it was not the intention of the law that mere possession for a length of time should make the possessors the owners of the land possessed by them without any action on the part of the authorities."[12]

The preamble stated that all those lands which had not been granted by Philip, or in his name, or by the kings who preceded him, belonged to the Crown.[13] For those lands granted by the king, the decree provided for a system of assignment of such lands.  It also ordered that all possessors of agricultural land should exhibit their title deed, otherwise, the land would be restored to the Crown.[14]

The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's principal subdelegate to issue a general order directing the publication of the Crown's instructions:

"x x x to the end that any and all persons who, since the year 1700, and up to the date of the promulgation and publication of said order, shall have occupied royal lands, whether or not x x x cultivated or tenanted, may  x x x appear and exhibit to said subdelegates the titles and patents by virtue of which said lands are occupied. x x x.  Said subdelegates will at the same time warn the parties 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 evicted from their lands, and they will be granted to others."[15]

On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied" by private individuals in the Philippine Islands.  Valenton construed these regulations together with contemporaneous legislative and executive interpretations of the law, and concluded that plaintiffs' 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:

"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 that he must make that proof before the proper administrative officers, and obtain from them his deed, and until he did that the State remained the absolute owner."[16]

In conclusion, the Court ruled:  "We hold that from 1860 to 1892 there was no law in force in these Islands by which the plaintiffs could obtain the ownership of these lands by prescription, without any action by the State."[17] Valenton had no rights other than those which accrued to mere possession. Murciano, on the other hand, was deemed to be the owner of the land by virtue of the grant by the provincial secretary.  In effect, Valenton upheld the Spanish concept of state ownership of public land.

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 the American Government in Act No. 926."[18]

C. The Public Land Acts and the Torrens System

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 lands of the public domain.  It prescribed rules and regulations for the homesteading, selling, and leasing of portions of the public domain of the Philippine Islands, and prescribed the terms and conditions to enable persons to perfect their titles to public lands in the Islands.  It also provided for the "issuance of patents to certain native settlers upon public lands," for the establishment of town sites and sale of lots therein, for the completion of imperfect titles, and for the cancellation or confirmation of Spanish concessions and grants in the Islands." In short, the Public Land Act operated on the assumption that title to public lands in the Philippine Islands remained in the government;[19] and that the government's title to public land sprung from the Treaty of Paris and other subsequent treaties between Spain and the United States.[20] The term "public land" referred to all lands of the public domain whose title still remained in the government and are thrown open to private appropriation and settlement,[21] and excluded the patrimonial property of the government and the friar lands.[22]

Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act.  This new law was passed under the Jones Law.  It was more comprehensive in scope but limited the exploitation of agricultural lands to Filipinos and Americans and citizens of other countries which gave Filipinos the same privileges.[23] After the passage of the 1935 Constitution, Act 2874 was amended in 1936 by Commonwealth Act No. 141.  Commonwealth Act No. 141 remains the present Public Land Law and it is essentially the same as Act 2874.  The main difference between the two relates to the transitory provisions on the rights of American citizens and corporations during the Commonwealth period at par with Filipino citizens and corporations.[24]

Grants of public land were brought under the operation of the Torrens system under Act 496, or the Land Registration Law of 1903.  Enacted by the Philippine Commission, Act 496 placed all public and private lands in the Philippines under the Torrens system.  The law is said to be almost a verbatim copy of the Massachussetts Land Registration Act of 1898,[25] which, in turn, followed the principles and procedure of the Torrens system of registration formulated by Sir Robert Torrens who patterned it after the Merchant Shipping 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 owner of the property described therein, subject to such liens and 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 of land are quieted upon issuance of said certificate.  This system highly facilitates land conveyance and negotiation.[27]

D. The Philippine Constitutions

The Regalian doctrine was enshrined in the 1935 Constitution.  One of the fixed and dominating objectives of the 1935 Constitutional Convention was the nationalization and conservation of the natural resources of the country.[28] There was an overwhelming sentiment in the Convention in favor of the principle of state ownership of natural resources and the adoption of the Regalian doctrine.[29] State ownership of natural resources was seen as a necessary starting point to secure recognition of the state's power to control their disposition, exploitation, development, or utilization.[30] The delegates to the Constitutional Convention very well knew that the concept of State ownership of land and natural resources was introduced by the Spaniards, however, they were not certain whether it was continued and applied by the Americans.  To remove all doubts, the Convention approved the provision in the Constitution affirming the Regalian doctrine.[31]

Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of Natural Resources," reads as follows:

"Sec. 1. 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 belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the 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, lease, or concession at the time of the inauguration of the Government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant."

The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National Economy and the Patrimony of the Nation," to wit:

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

The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National Economy and Patrimony," to wit:

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

x      x        x."

Simply stated, all lands of the public domain as well as all natural resources enumerated therein, whether on public or private land, belong to the State.  It is this concept of State ownership that petitioners claim is being violated by the IPRA.

II. THE INDIGENOUS PEOPLES RIGHTS ACT.

Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/ Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The Indigenous Peoples Rights Act of 1997" or the IPRA.

The IPRA recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society.  It grants these people the ownership and possession of their ancestral domains and ancestral lands, and defines the extent of these lands and domains.  The ownership given is the indigenous concept of ownership under customary law which traces its origin to native title.

Other rights are also granted the ICCs/IPs, and these are:

- the right to develop lands and natural resources;

- the right to stay in the territories;

- the right in case of displacement;

- the right to safe and clean air and water;

- the right to claim parts of reservations;

- the right to resolve conflict;[32]

- the right to ancestral lands which include

a. the right to transfer land/property to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned;

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 vitiated consent of the ICC/IP, or if the transfer is for an unconscionable consideration.[33]

Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and empowerment,[34] social justice and human 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 technologies.[36]

To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples (NCIP).  The NCIP is an independent agency under the Office of the President and is composed of seven (7) Commissioners belonging to ICCs/IPs from each of the ethnographic areas-- Region I and the Cordilleras; Region II; the rest of Luzon; Island groups including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and Central Mindanao.[37] The NCIP took over the functions of the Office for Northern Cultural Communities and the Office for Southern Cultural Communities created by former President Corazon Aquino which were merged under a revitalized structure.[38]

Disputes involving ICCs/IPs are to be resolved under customary laws and practices.  When still unresolved, the matter may be brought to the NCIP, which is granted quasi-judicial powers.[39] The NCIP's decisions may be appealed to the Court of Appeals by a petition for review.

Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized and/or unlawful intrusion upon ancestral lands and domains shall be punished in accordance with customary laws or imprisoned from 9 months to 12 years and/or fined from P100,000.00 to P500,000.00 and obliged to pay damages.[40]

A. Indigenous Peoples

The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs) or the Indigenous Peoples (IPs).  The term "ICCs" is used in the 1987 Constitution while that of "IPs" is the contemporary international language in the International Labor Organization (ILO) Convention 169[41] and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.[42]

ICCs/IPs are defined by the IPRA as:

"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples-- refer to a group of people or homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains."

Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous societies who have continuously lived as an organized community on communally bounded and defined territory.  These groups of people have actually occupied, possessed and utilized their territories under claim of ownership since time immemorial.  They share common bonds of language, customs, traditions and other distinctive cultural traits, or, they, by their resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at the time of conquest or colonization, who retain some or all of their own social, economic, cultural and political institutions but who may have been displaced from their traditional territories or who may have resettled outside their ancestral domains.

1. Indigenous Peoples: Their History

Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands.  They are composed of 110 tribes and are as follows:

1. In the Cordillera Autonomous Region-- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela.

2. In Region III-- Aetas.

3. In Region IV-- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.

4. In Region V-- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, 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 Sur.

5. In Region VI-- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental; the Corolano and Sulod.

6. In Region VII-- Magahat of Negros Oriental and Eskaya of Bohol.

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.

8. Region X-- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog, Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan provinces, and the Umayamnon of Agusan and Bukidnon.

9. In Region XI-- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of Davao and South Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South Cotabato; and Bagobo of Davao del sur and South Cotabato.

10. In Region XII-- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and Iranon.[43]

How these indigenous peoples came to live in the Philippines goes back to as early as 25,000 to 30,000 B.C.

Before the time of Western contact, the Philippine archipelago was peopled largely by the Negritos, Indonesians and Malays.[44] The strains from these groups eventually gave rise to common cultural features which became the dominant influence in ethnic reformulation in the archipelago.  Influences from the Chinese and Indian civilizations in the third or fourth millenium B.C. augmented these ethnic strains.  Chinese economic and socio-cultural influences came by way of Chinese porcelain, silk and traders.  Indian influence found their way into the religious-cultural aspect of pre-colonial society.[45]

The ancient Filipinos settled beside bodies of water.  Hunting and food gathering became supplementary activities as reliance on them was reduced by fishing and the cultivation of the soil.[46] From the hinterland, coastal, and riverine communities, our ancestors evolved an essentially homogeneous culture, a basically common way of life where nature was a primary factor.  Community life throughout the archipelago was influenced by, and responded to, common 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]

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-stock and used them not only as media of daily communication but also as vehicles for the expression of their literary moods.[49] They fashioned concepts and beliefs about the world that they could not see, but which they sensed to be part of their lives.[50] They had their own religion and religious beliefs.  They believed in the immortality of the soul and life after death.  Their rituals were 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 Filipinos adored the sun, the moon, the animals and birds, for they seemed to consider the objects of Nature as something to be respected.  They venerated almost any object that was close to their daily life, indicating the importance of the relationship between man and the object of nature.[51]

The unit of government was the "barangay," a term that derived its meaning from the Malay word "balangay," meaning, a boat, which transported them to these shores.[52] The barangay was basically a family-based community and consisted of thirty to one hundred families.  Each barangay was different and 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 powers for he exercised all the functions of government.  He was the executive, legislator and judge and was the supreme commander in time of war.[53]

Laws were either customary or written.  Customary laws were handed down orally from generation to generation and constituted the bulk of the laws of the barangay.  They were preserved in songs and chants and in the memory of the elder persons in the community.[54] The written laws were those that the chieftain and his elders promulgated from time to time as the necessity arose.[55] The oldest known written body of laws was the Maragtas Code by Datu Sumakwel at about 1250 A.D.  Other old codes are the Muslim Code of Luwaran and the Principal Code of Sulu.[56] Whether customary or written, the laws dealt with various subjects, such as inheritance, divorce, usury, loans, partnership, crime and punishment, property rights, family relations and adoption.  Whenever disputes arose, these were decided peacefully through a court composed by the chieftain as "judge" and the barangay elders as "jury." Conflicts arising between subjects of different barangays were resolved by arbitration in which a board composed of elders from neutral barangays acted as arbiters.[57]

Baranganic society had a distinguishing feature: the absence of private property in land.  The chiefs merely administered the lands in the name of the barangay.  The social order was an extension of the family with chiefs embodying the higher unity of the community.  Each individual, therefore, participated in the community ownership of the soil and the instruments of production as a member of the barangay.[58] This ancient communalism was practiced in accordance with the concept of mutual sharing of resources so that no individual, regardless of status, was without sustenance.  Ownership of land was non-existent or unimportant and the right of usufruct was what regulated the development of lands.[59] Marine resources and fishing grounds were likewise free to all.  Coastal communities depended for their economic welfare on the kind of fishing sharing concept similar to those in land communities.[60] Recognized leaders, such as the chieftains and elders, by virtue of their positions of importance, enjoyed some economic privileges and benefits.  But their rights, related to either land and sea, were subject to their responsibility to protect the communities from danger and to provide them with the leadership and means of survival.[61]

Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao.  The Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented today by Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this jurisdiction:  Sama, Tausug, Yakan and Subanon.[62] The Sultanate of Maguindanao spread out from Cotabato toward Maranao territory, now Lanao del Norte and Lanao del Sur.[63]

The Muslim societies evolved an Asiatic form of feudalism where land was still held in common but was private in use.  This is clearly indicated in the Muslim Code of Luwaran.  The Code contains a provision on the lease of cultivated lands.  It, however, has no provision for the acquisition, transfer, cession or sale of land.[64]

The societies encountered by Magellan and Legaspi therefore were primitive economies where most production was geared to the use of the producers and to the fulfillment of kinship obligations.  They were not economies geared to exchange and profit.[65] Moreover, the family basis of barangay membership as well as of leadership and governance worked to splinter the population of the islands into numerous small and separate communities.[66]

When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos living in barangay settlements scattered along water routes and river banks.  One of the first tasks imposed on the missionaries and the encomenderos was to collect all scattered Filipinos together in a reduccion.[67] As early as 1551, the Spanish government assumed an unvarying solicitous attitude towards the natives.[68] The Spaniards regarded it a sacred "duty to conscience and humanity to civilize these less fortunate people living in the obscurity of ignorance" and to accord them the "moral and material advantages" of community life and the "protection and vigilance afforded them by the same laws."[69]

The Spanish missionaries were ordered to establish pueblos where the church and convent would be constructed.  All the new Christian converts were required to construct their houses around the church and the unbaptized were invited to do the same.[70] With the reduccion, the Spaniards attempted to "tame" the reluctant Filipinos through Christian indoctrination using the convento/casa real/plaza complex as focal point.  The reduccion, to the Spaniards, was a "civilizing" device to make the Filipinos law-abiding citizens of the Spanish Crown, and in the long run, to make them ultimately adopt Hispanic culture and civilization.[71]

All lands lost by the old barangays in the process of pueblo organization as well as all lands not assigned to them and the pueblos, were now declared to be crown lands or realengas, belonging to the Spanish king.  It was from the realengas that land grants were made to non-Filipinos.[72]

The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of public domain were the most immediate fundamental results of Spanish colonial theory and law.[73] The concept that the Spanish king was the owner of everything of value in the Indies or colonies was imposed on the natives, and the natives were stripped of their ancestral rights to land.[74]

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 Filipinos, who generally came from the lowland populations.  Second, were the Moros or the Muslim communities, and third, were the infieles or the indigenous communities.[75]

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 Spaniards.  The Moros and infieles were regarded as the lowest classes.[76]

The Moros and infieles resisted Spanish rule and Christianity.  The Moros were driven from Manila and the Visayas to Mindanao; while the infieles, to the hinterlands.  The Spaniards did not pursue them into the deep interior.  The upland societies were naturally outside the immediate concern of Spanish interest, and the cliffs and forests of the hinterlands were difficult and inaccessible, allowing the infieles, in effect, relative security.[77] Thus, the infieles, which were peripheral to colonial administration, were not only able to preserve their own culture but also thwarted the Christianization process, separating themselves from the newly evolved Christian community.[78] Their own political, economic and social systems were kept constantly alive and vibrant.

The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of suspicion, fear, and hostility between the Christians on the one hand and the non-Christians on the other.  Colonialism tended to divide and rule an otherwise culturally and historically related populace through a colonial system that exploited both the virtues and vices of the Filipinos.[79]

President McKinley, in his instructions to the Philippine Commission of April 7, 1900, addressed the existence of the infieles:

"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization 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 to conform.  Such tribal government should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs."[80]

Placed in an alternative of either letting the natives alone or guiding them in the path of civilization, the American government chose "to adopt the latter measure as one more in accord with humanity and with the national conscience."[81]

The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian Filipinos.  The term "non-Christian" referred not to religious belief, but to a geographical area, and more directly, "to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities."[82]

Like the Spaniards, the Americans pursued a policy of assimilation.  In 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 conduct ethnographic research among unhispanized Filipinos, including those in Muslim Mindanao, with a "special view to determining the most practicable means for bringing about their advancement in civilization and prosperity." The BNCT was modeled after the bureau dealing with American Indians.  The agency took a keen anthropological interest in Philippine cultural minorities and produced a wealth of valuable materials about them.[83]

The 1935 Constitution did not carry any policy on the non-Christian Filipinos.  The raging issue then was the conservation of the national patrimony for the Filipinos.

In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and complete manner the economic, social, moral and political advancement of the non-Christian Filipinos or national cultural minorities and to render real, complete, and permanent the integration of all said national cultural minorities into the body politic, creating the Commission on National Integration charged with said functions." The law called for a policy of integration of indigenous peoples into the Philippine mainstream and for this purpose created the Commission on National Integration (CNI).[84] The CNI was given, more or less, the same task as the BNCT during the American regime.  The post-independence policy of integration was like the colonial policy of assimilation understood in the context of a guardian-ward relationship.[85]

The policy of assimilation and integration did not yield the desired result.  Like the Spaniards and Americans, government attempts at integration met with fierce resistance.  Since World War II, a tidal wave of Christian settlers from the lowlands of Luzon and the Visayas swamped the highlands and wide 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 lands in the settlers' names.  With government initiative and participation, this titling displaced several indigenous peoples from their lands.  Worse, these peoples were also displaced by projects undertaken by the national government in the name of national development.[87]

It was in the 1973 Constitution that the State adopted the following provision:

"The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation and implementation of State policies."[88]

For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities" were addressed by the highest law of the Republic, and they were referred to as "cultural communities." More importantly this time, their "uncivilized" culture was given some recognition and their "customs, traditions, beliefs and interests" were to be considered by the State in the formulation and implementation of State policies.  President Marcos abolished the CNI and transferred its functions to the Presidential Adviser on National Minorities (PANAMIN).  The PANAMIN was tasked to integrate the ethnic groups that sought full integration into the larger community, and at the same time "protect the rights of those who wish to preserve their original lifeways beside the larger community."[89] In short, while still adopting the integration policy, the decree recognized the right of tribal Filipinos to preserve their way of life.[90]

In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands Decree.  The decree provided for the issuance of land occupancy certificates to members of the national cultural communities who were given up to 1984 to register their claims.[91] In 1979, the Commission on the Settlement of Land Problems was created under E.O. No. 561 which provided a mechanism for the expeditious resolution of land problems involving small settlers, landowners, and tribal Filipinos.[92]

Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and Bontoks of the Cordillera region were displaced by the Chico River dam project of the National Power Corporation (NPC).  The Manobos of Bukidnon saw their land bulldozed by the Bukidnon Sugar Industries Company (BUSCO).  In Agusan del Sur, the National Development Company was authorized by law in 1979 to take approximately 40,550 hectares of land that later became the NDC-Guthrie plantation in Agusan del Sur.  Most of the land was possessed by the Agusan natives.[93] Timber concessions, water projects, plantations, mining, and cattle ranching and other projects of the national government led not only to the eviction of the indigenous peoples from their land but also to the reduction and destruction of their natural environment.[94]

The Aquino government signified a total shift from the policy of integration to one of preservation.  Invoking her powers under the Freedom Constitution, President Aquino created the Office of Muslim Affairs, Office for Northern Cultural Communities and the Office for Southern Cultural Communities all under the Office of the President.[95]

The 1987 Constitution carries at least six (6) provisions which insure the right of tribal Filipinos to preserve their way of life.[96] This Constitution goes further than the 1973 Constitution by expressly guaranteeing the rights of tribal Filipinos to their ancestral domains and ancestral lands.  By recognizing their right to their ancestral lands and domains, the State has effectively upheld their right to live in a culture distinctly their own.

2. Their Concept of Land

Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream.  They are non-Christians.  They live in less accessible, marginal, mostly upland areas.  They have a system of self-government not dependent upon the laws of the central administration of the Republic of the Philippines.  They follow ways of life and customs that are perceived as different from those of the rest of the population.[97] The kind of response the indigenous 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 traditions.  The "infieles societies" which had become peripheral to colonial administration, represented, from a cultural perspective, a much older base of archipelagic culture.  The political systems were still structured on the patriarchal and kinship oriented arrangement of power and authority.  The economic activities were governed by the concepts of an ancient communalism and mutual help.  The social structure which emphasized division of labor and distinction of functions, not status, was maintained.  The cultural styles and forms of life portraying the varieties of social courtesies and ecological adjustments were kept constantly vibrant.[98]

Land is the central element of the indigenous peoples' existence.  There is no traditional concept of permanent, individual, land ownership.  Among the Igorots, ownership of land more accurately applies to the tribal right to use the land or to territorial control.  The people are the secondary owners or stewards of the land and that if a member of the tribe ceases to work, he loses his claim of ownership, and the land reverts to the beings of the spirit world who are its true and primary owners.  Under the concept of "trusteeship," the right to possess the land does not only belong to the present generation but the future ones as well.[99]

Customary law on land rests on the traditional belief that no one owns the land except the gods and spirits, and that those who work the land are its mere stewards.[100] Customary law has a strong preference for communal ownership, which could either be ownership by a group of individuals or families who are related by blood or by marriage,[101] or ownership by residents of the same locality who may not be related by blood or marriage.  The system of communal ownership under customary laws draws its meaning from the subsistence and highly collectivized mode of economic production.  The Kalingas, for instance, who are engaged in team occupation like hunting, foraging for forest products, and swidden farming found it natural that forest areas, swidden farms, orchards, pasture and burial grounds should be communally-owned.[102] For the Kalingas, everybody has a common right to a common economic base.  Thus, as a rule, rights and obligations to the land are shared in common.

Although highly bent on communal ownership, customary law on land also sanctions individual ownership.  The residential lots and terrace rice farms are governed by a limited system of individual ownership.  It is limited because while the individual owner has the right to use and dispose of the property, he does not possess all the rights of an exclusive and full owner as defined under our Civil Code.[103] Under Kalinga customary law, the alienation of individually-owned land is strongly discouraged except in marriage and succession and except to meet sudden financial needs due to sickness, death in the family, or loss of crops.[104] Moreover, and to be alienated should first be offered to a clan-member before any village-member can purchase it, and in no case may land be sold to a non-member of the ili.[105]

Land titles do not exist in the indigenous peoples' economic and social system.  The concept of individual land ownership under the civil law is alien to them.  Inherently colonial in origin, our national land laws and governmental policies frown upon indigenous claims to ancestral lands.  Communal ownership is looked upon as inferior, if not inexistent.[106]

III.  THE IPRA IS A NOVEL PIECE OF LEGISLATION.

A. The Legislative History of the IPRA

It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth Congress of the Philippines, by their joint efforts, passed and approved R.A. No. 8371, the Indigenous Peoples Rights Act (IPRA) of 1997.  The law was a consolidation of two Bills-- Senate Bill No. 1728 and House Bill No. 9125.

Principally sponsored by Senator Juan M. Flavier,[107] Senate Bill No. 1728 was a consolidation of four proposed measures referred to the Committees on Cultural Communities, Environment and Natural Resources, Ways and Means, as well as Finance.  It adopted almost en toto the comprehensive version of Senate Bill Nos. 1476 and 1486 which was a result of six regional consultations and one national consultation with indigenous peoples nationwide.[108] At the Second Regular Session of the Tenth Congress, Senator Flavier, in his sponsorship speech, gave a background on the situation of indigenous peoples in the Philippines, to wit:

"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance and neglect of government controlled by the majority.  Massive migration of their Christian brothers to their homeland shrunk their territory and many of the tribal Filipinos were pushed to the hinterlands.  Resisting the intrusion, dispossessed of their ancestral land and with the massive exploitation of their natural resources by the elite among the migrant population, they became marginalized.  And the government has been an indispensable party to this insidious conspiracy against the Indigenous Cultural Communities (ICCs).  It organized and supported the resettlement of people to their ancestral land, which was massive during the Commonwealth and early years of the Philippine Republic.  Pursuant to the Regalian Doctrine first introduced to our system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the traditional areas of the ICCs."[109]

Senator Flavier further declared:

"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long before any central government was established.  Their ancestors had territories over which they ruled themselves and related with other tribes.  These territories- the land- include people, their dwelling, the mountains, the water, the air, plants, forest and the animals.  This is their environment in its totality.  Their existence as indigenous peoples is manifested in their own lives through political, economic, socio-cultural and spiritual practices.  The IPs culture is the living and irrefutable proof to this.

Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on it.  Otherwise, IPs shall cease to exist as distinct peoples."[110]

To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based on two postulates:  (1) the concept of native title; and (2) the principle of parens patriae.

According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine reinstated in Section 2, Article XII of the 1987 Constitution," our "decisional laws" and jurisprudence passed by the State have "made exception to the doctrine." This exception was first laid down in the case of Cariño v. Insular Government where:

"x x x the court has recognized long occupancy of land by an indigenous member of the cultural communities as one of private ownership, which, in legal concept, is termed "native title." This ruling has not been overturned.  In fact, it was affirmed in subsequent cases."[111]

Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous Region of Muslim Mindanao).  These laws, explicitly or implicitly, and liberally or restrictively, recognized "native title" or "private right" and the existence of ancestral lands and domains.  Despite the passage of these laws, however, Senator Flavier continued:

"x x x the executive department of government since the American occupation 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 Commonwealth and the early years of the Philippine Republic when government organized and supported massive resettlement of the people to the land of the ICCs."

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 of parens patriae inherent in the supreme power of the State and deeply embedded in Philippine legal tradition.  This principle mandates that persons suffering from serious disadvantage or handicap, which places them in a position of actual inequality in their relation or transaction with others, are entitled to the protection of the State.

Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in favor and none against, with no abstention.[112]

House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural Communities.  It was originally authored and subsequently presented and defended on the floor by Rep. Gregorio Andolana of North Cotabato.[113]

Rep. Andolana's sponsorhip speech reads as follows:

"This Representation, as early as in the 8th Congress, filed a bill of similar implications that would promote, recognize the rights of indigenous cultural communities within the framework of national unity and development.

Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain that these rights shall be well-preserved and the cultural traditions as well as the indigenous laws that remained long before this Republic was established shall be preserved and promoted.  There is a need, Mr. 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 12 million Filipinos that they be considered in the mainstream of the Philippine society as we fashion for the year 2000." [114]

Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in the Constitution.  He also emphasized that the 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 establishment of the Spanish and American regimes.[115]

After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was approved on Second Reading with no objections.

IV.  THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.

A.  Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples and Do Not Constitute Part of the Land of the Public Domain.

The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral 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 Right Act, viz:

"Sec. 3 a) Ancestral Domains. -- Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare.  It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;

b) Ancestral Lands.-- Subject to Section 56 hereof, refers to land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors-in-interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots."

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with government and/or private individuals or corporations.  Ancestral domains comprise lands, inland waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources.  They also include lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.[116]

Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains except that these are limited to lands and that these lands are not merely occupied and possessed but are also utilized by the ICCs/IPs under claims of individual or traditional group ownership.  These lands include but are not limited to residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.[117]

The procedures for claiming ancestral domains and lands are similar to the procedures embodied in Department Administrative Order (DAO) No. 2, series of 1993, signed by then Secretary of the Department of Environment and Natural Resources (DENR) Angel Alcala.[118] DAO No. 2 allowed the delineation of ancestral domains by special task forces and ensured the issuance of Certificates of Ancestral Land Claims (CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs.

The identification and delineation of these ancestral domains and lands is a power conferred by the IPRA on the National Commission on Indigenous Peoples (NCIP).[119] The guiding principle in identification and delineation is self-delineation.[120] This means that the ICCs/IPs have a decisive role in determining the boundaries of their domains and in all the activities pertinent thereto.[121]

The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51 and 52 of the IPRA.  The identification, delineation and certification of ancestral lands is in Section 53 of said law.

Upon due application and compliance with the procedure provided under the law and upon finding by the NCIP that the application is meritorious, the NCIP shall issue a Certificate of Ancestral Domain Title (CADT) in the name of the community concerned.[122] The allocation of lands within the ancestral domain to any individual or indigenous corporate (family or clan) claimants is left to the ICCs/IPs concerned to decide in accordance with customs and traditions.[123] With respect to ancestral lands outside the ancestral domain, the NCIP issues a Certificate of Ancestral Land Title (CALT).[124]

CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of Deeds in the place where the property is situated.[125]

(1)  Right to Ancestral Domains and Ancestral Lands:  How Acquired

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 Registration Act with respect to ancestral lands only.

(2)  The Concept of Native Title

Native title is defined as:

"Sec. 3 [l]. Native Title-- refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest."[126]

Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of private ownership as far back as memory reaches.  These lands are deemed never to have been public lands and are indisputably presumed to have been held that way since before the Spanish Conquest.  The rights of ICCs/IPs to their ancestral domains (which also include ancestral lands) by virtue of native title shall be recognized and respected.[127] Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated.[128]

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 declares ancestral lands and domains held by native title as never to have been public land.  Domains and lands held under native title are, therefore, indisputably presumed to have never been public lands and are private.

(a)  Cariño v. Insular Government[129]

The concept of native title in the IPRA was taken from the 1909 case of Cariño v. Insular Government.[130] Cariño firmly established a concept of private land title that existed irrespective of any royal grant from the State.

In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land registration court 146 hectares of land in Baguio Municipality, Benguet Province.  He claimed that this land had been possessed and occupied by his ancestors since time immemorial; that his grandfather built fences around the property for the holding of cattle and that his father cultivated some parts of the land.  Cariño inherited the land in accordance with Igorot custom.  He tried to have the land adjusted under the Spanish land laws, but no document issued from the Spanish Crown.[131] In 1901, Cariño obtained a possessory title to the land under the 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 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 orders to keep cattle and trespassers, including Cariño, off the land.[134]

In 1904, the land registration court granted Cariño's application for absolute 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 Court[135] affirmed the C.F.I. by applying the Valenton ruling.  Cariño took the case to the U.S. Supreme Court.[136] On one hand, the Philippine government invoked the Regalian doctrine and contended that Cariño failed to comply with the provisions of the Royal Decree of June 25, 1880, which required registration of land claims within a limited period of time.  Cariño, on the other, asserted that he was the absolute owner of the land jure gentium, and that the land never formed part of the public domain.

In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:

"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment 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 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, sovereignty is a question of strength, and may vary in degree.  How far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts, are matters for it to decide."[137]

The U.S. Supreme Court noted that it need not accept Spanish doctrines.  The choice was with the new colonizer.  Ultimately, the matter had to be decided under U.S. law.

The Cariño decision largely rested on the North American constitutionalist's concept of "due process" as well as the pronounced policy "to do justice to the natives."[138] It was based on the strong mandate extended to the Islands via the Philippine Bill of 1902 that "No law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." The court declared:

"The acquisition of the Philippines was not like the settlement of the white race in the United States.  Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy land.  It is obvious that, however stated, the reason for our taking over the Philippines was different.  No one, we suppose, would deny that, so far as 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 country for private gain.  By the Organic Act of July 1, 1902, chapter 1369, section 12 (32 Statutes at Large, 691), all the property and rights acquired there by the United States are to be administered 'for the benefit of the inhabitants thereof.'  It is reasonable to suppose that the attitude thus assumed by the United States with regard to what was unquestionably its own is also its attitude in deciding what it will claim for its own.  The same statute made a bill of rights, embodying the safeguards of the Constitution, and, like the Constitution, extends those safeguards to all.  It provides that 'no law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws.' In the light of the declaration that we have quoted from section 12, it is hard to believe that the United States was ready to declare in the next breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by "property" only that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as 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 went further:

"[E]very presumption is and ought to be against the government in a 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 held by individuals 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 been public land.  Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give the applicant the benefit of the doubt."[140]

The court thus laid down the presumption of a certain title held (1) as far back as testimony or memory went, and (2) under a claim of private ownership.  Land held by this title is presumed to "never have been public land."

Against this presumption, the U.S. Supreme Court analyzed the Spanish 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 title.  On the contrary, the decrees discussed in Valenton appeared to recognize that the natives owned some land, irrespective of any royal grant.  The Regalian doctrine declared in the preamble of the Recopilacion was all "theory and discourse" and it was observed that titles were admitted to exist beyond the powers of the Crown, viz:

"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bad by that law as to satisfy us that he does not own the land.  To begin with, the older decrees and laws cited by the counsel for the plaintiff in error seem to indicate pretty clearly that the natives were recognized as owning some lands, irrespective of any royal grant.  In other words, Spain did not assume to convert all the native inhabitants of the Philippines into trespassers or even into tenants at will.  For instance, Book 4, title 12, Law 14 of the the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano, 3 Philippine 537, while it commands viceroys and others, when it seems proper, to call for the exhibition of grants, directs them to confirm those who hold by good grants or justa prescripcion.  It is true that it begins by the characteristic assertion of feudal overlordship and the origin of all titles in the King or his predecessors.  That was theory and discourse.  The fact was that titles were admitted to exist that owed nothing to the powers of Spain beyond this recognition in their books." (Emphasis supplied).[141]

The court further stated that the Spanish "adjustment" proceedings never held sway over unconquered territories.  The wording of the Spanish laws were not 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 requirement was "not to confer title, but simply to establish it;" it was "not calculated to convey to the mind of an Igorot chief the notion that ancient family possessions were in danger, if he had read every word of it."

By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton.  It was frank enough, however, to admit the possibility that the 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 ambiguity and of the strong "due process mandate" of the Constitution, the court validated this kind of title.[142] This title was sufficient, even without government administrative action, and entitled the holder to a Torrens certificate.  Justice Holmes explained:

"It will be perceived that the rights of the applicant under the Spanish law 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 sovereignty and the act of Congress establishing the fundamental principles now to be observed.  Upon a consideration of the whole case we are of the opinion that law and justice require that the applicant should be granted what he seeks, and should not be deprived of what, by the practice and belief of those among whom he lived, was his property, through a refined interpretation of an almost forgotten law of Spain."[143]

Thus, the court ruled in favor of Cariño and ordered the registration of the 148 hectares in Baguio Municipality in his name.[144]

Examining Cariño closer, the U.S. Supreme Court did not categorically refer to the title it upheld as "native title." It simply said:

"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument, characterized as a savage tribe that never was brought under the civil or military government of the Spanish Crown.  It seems probable, if not certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly the 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 Spain it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present government seized his land.  The argument to that effect seems to amount to a denial of native titles through an important part of the Island of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce."[145]

This is the only instance when Justice Holmes used the term "native title" in the entire length of the Cariño decision.  It is observed that the widespread use of the term "native title" may be traced to Professor Owen James Lynch, Jr., a Visiting Professor at the University of the Philippines College of Law from the Yale University Law School.  In 1982, Prof. Lynch published an article in the Philippine Law Journal entitled Native Title, Private Right and Tribal Land Law.[146] This article was made after Professor Lynch visited over thirty tribal communities throughout the country and studied the origin and development of Philippine land laws.[147] He discussed Cariño extensively and used the term "native title" to refer to Cariño's title as discussed and upheld by the U.S. Supreme Court in said case.

(b) Indian Title

In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined by Justice Holmes in Cariño "is conceptually similar to "aboriginal title" of the American Indians.[148] This is not surprising, according to Prof. Lynch, considering that during the American regime, government policy towards ICCs/IPs was consistently made in reference to native Americans.[149] This was clearly demonstrated in the case of Rubi v. Provincial Board of Mindoro.[150]

In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor to remove the Mangyans from their domains and place them in a permanent reservation in Sitio Tigbao, Lake Naujan.  Any Mangyan who refused to comply was to be imprisoned.  Rubi and some Mangyans, including one who was imprisoned for trying to escape from the reservation, filed for habeas corpus claiming deprivation of liberty under the Board Resolution.  This Court denied the petition on the ground of police power.  It upheld government policy promoting the idea that a permanent settlement was the only successful method for educating the Mangyans, introducing civilized customs, improving their health and morals, and protecting the public forests in which they roamed.[151] Speaking through Justice Malcolm, the court said:

"Reference was made in the President's instructions to the Commission to the policy adopted by the United States for the Indian Tribes.  The methods followed by the Government of the Philippine Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian tribes.  Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward.  It is for the Congress to determine when and how the guardianship shall be terminated.  The Indians are always subject to the plenary authority of the United States.[152]

x                                         x                                           x.

As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly identical.  But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different parts of the country and placed on these reservations, without any previous consultation as to their own wishes, and that, when once so located, they have been made to remain on the reservation for their own good and for the general good of the country.  If any lesson can be drawn from the Indian policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a carefully planned governmental system.  Perhaps, just as many forceful reasons exist for the segregation of the Manguianes in Mindoro as existed for the segregation of the different Indian tribes in the United States."[153]

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 for the use and occupation of a tribe or tribes of Indians.[154] It may be set apart by an act of Congress, by treaty, or by executive order, but it cannot be established by custom and prescription.[155]

Indian title to land, however, is not limited to land grants or reservations. It also covers the "aboriginal right of possession or occupancy."[156] The aboriginal right of possession depends on the actual occupancy of the lands in question by the tribe or nation as their ancestral home, in the sense that such 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 governmental action, although in numerous instances treaties have been negotiated with Indian tribes, recognizing their aboriginal possession and delimiting their occupancy rights or settling and adjusting their boundaries.[158]

American jurisprudence recognizes the Indians' or native Americans' 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. Supreme Court on the nature of aboriginal title was made in 1823 in Johnson & Graham's Lessee v. M'Intosh.[159]

In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of two (2) Indian tribes.  The U.S. Supreme Court refused to recognize this conveyance, the plaintiffs being private persons.  The only conveyance that was recognized was that made by the Indians to the 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 made ample compensation to the inhabitants of the new world by bestowing civilization and Christianity upon them; but in addition, said the court, they found it necessary, in order to avoid conflicting settlements and consequent war, to establish the principle that discovery gives title to the government by whose subjects, or by whose authority, the discovery was made, against all other European governments, which title might be consummated by possession.[160] The exclusion of all other Europeans gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it.  As regards the natives, the court further stated that:

"Those relations which were to exist between the discoverer and the natives were to be regulated by themselves.  The rights thus acquired being exclusive, no other power could interpose between them.

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired.  They were admitted to be the 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 rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the fundamental principle that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a 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, subject only to the Indian right of occupancy."[161]

Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire Indian land and extinguish Indian titles.  Only to 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 right nonetheless did not extinguish Indian claims to land.  Rather, until the discoverer, by purchase or conquest, exercised its right, the concerned Indians were recognized as the "rightful occupants of the soil, with a legal as well as just 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, subject only to the Indian right of occupancy.  Once the discoverer purchased the land from the Indians or conquered them, it was only then that the discoverer gained an absolute title unrestricted by Indian rights.

The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title paramount to the title of the United States itself to other parties, saying:

"It has never been contended that the Indian title amounted to nothing.  Their right of possession has never been questioned.  The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right."[162]

It has been said that the history of America, from its discovery to the present day, proves the universal recognition of this principle.[163]

The Johnson doctrine was a compromise.  It protected Indian rights and their native lands without having to invalidate conveyances made by the government to many U.S. citizens.[164]

Johnson was reiterated in the case of Worcester v. Georgia.[165] In this case, the State of Georgia enacted a law requiring all white persons residing within the Cherokee nation to obtain a license or permit from the Governor of Georgia; and any violation of the law was deemed a high misdemeanor.  The plaintiffs, who were white missionaries, did not obtain said license and were thus charged with a violation of the Act.

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 well as the Acts of Congress regulating intercourse with them.  It characterized the relationship between the United States government and the Indians as:

"The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into their country.  That power was naturally 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 establishment of that of the United States in its place, led naturally to the declaration, on the part of the Cherokees, that they were under the protection of the United States, and of no other power.  They assumed the relation with the United States which had before subsisted with Great Britain.

This relation was that of a nation claiming and receiving the protection of one more powerful, not that of individuals abandoning their national character, and submitting as subjects to the laws of a master."[166]

It was the policy of the U.S. government to treat the Indians as nations with distinct territorial boundaries and recognize their right of occupancy over all the lands within their domains.  Thus:

"From the commencement of our government Congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.  All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.

x    x            x.

"The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians.  The very term "nation," so generally applied to them, means "a people distinct from others." x           x            x.[167]

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no 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 acts of Congress.  The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States."[168]

The discovery of the American continent gave title to the government of the discoverer as against all other European governments.  Designated as the naked fee,[169] this title was to be consummated by possession and was subject to the Indian title of occupancy.  The discoverer acknowledged the Indians' legal and just claim to retain possession of the land, the Indians being the original inhabitants of the land.  The discoverer nonetheless asserted the exclusive right to acquire the Indians' land-- either by purchase, "defensive" conquest, or cession-- and in so doing, extinguish the Indian title.  Only the discoverer could extinguish Indian title because it alone asserted ultimate dominion in itself.  Thus, while the different nations of Europe respected the rights of the natives as occupants, they all asserted the ultimate dominion and title to be in themselves.[170]

As early as the 19th century, it became accepted doctrine that although fee title to the lands occupied by the Indians when the colonists arrived became vested in the sovereign-- first the discovering European nation and later the original 13 States and the United States-- a right of occupancy in the Indian tribes was nevertheless recognized.  The Federal Government continued the policy of respecting the Indian right of occupancy, sometimes called Indian title, which it accorded the protection of complete ownership.[171] But this aboriginal Indian interest simply constitutes "permission" from the whites to occupy the land, and means mere possession not specifically recognized as ownership by Congress.[172] It is clear that this right of occupancy based upon aboriginal possession is not a property right.[173] It is vulnerable to affirmative action by the federal government who, as sovereign, possessed exclusive power 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 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 sold to another sovereign government nor to any citizen.[176] Such title as Indians have to possess and occupy land is in the tribe, and not in the individual Indian; the right of individual Indians to share in the tribal property usually depends upon tribal membership, the property of the tribe generally being held in communal ownership.[177]

As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to designate such lands as are subject to sale or other disposal under general laws.[178] Indian land which has been abandoned is deemed to fall into the public domain.[179] On the other hand, an Indian reservation is a part of the public domain set apart for the use and occupation of a tribe of Indians.[180] Once set apart by proper authority, the reservation ceases to be public land, and until the Indian title is extinguished, no one but Congress can initiate any preferential right on, or restrict the nation's power to dispose of, them.[181]

The American judiciary struggled for more than 200 years with the ancestral land claims of indigenous Americans.[182] And two things are clear.  First, aboriginal title is recognized.  Second, indigenous property systems are also recognized.  From a legal point of view, certain benefits can be drawn from a comparison of Philippine IPs to native Americans.[183] Despite the similarities between native title and aboriginal title, however, there are at present some misgivings on whether jurisprudence on American Indians may be cited authoritatively in the Philippines.  The U.S. recognizes the possessory rights of 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 not specifically recognized as ownership by action authorized by Congress.[184] The protection of aboriginal title merely guards against encroachment by persons other than the Federal Government.[185] Although there are criticisms against the refusal to recognize the native Americans' ownership of these lands,[186] the power of the State to extinguish these titles has remained firmly entrenched.[187]

Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral domains and ancestral lands.[188] The IPRA, however, is still in its infancy and any similarities between its application in the Philippines vis-à-vis American Jurisprudence on aboriginal title will depend on the peculiar facts of each case.

(c) Why the Cariño doctrine is unique

In the Philippines, the concept of native title first upheld in Cariño and enshrined in the IPRA grants ownership, albeit in limited form, of the land to the ICCs/IPs.  Native title presumes that the land is private and was never public.  Cariño is the only case that specifically and categorically recognizes native title.  The long line of cases citing Cariño did not touch on native title and the private character of ancestral domains and lands.  Cariño was cited by the succeeding cases to support the concept of acquisitive prescription under the Public Land Act which is a different matter altogether.  Under the Public Land Act, land sought to be registered must be public agricultural land.  When the conditions specified in Section 48 [b] of the Public Land Act are complied with, the possessor of the land is deemed to have acquired, by operation of law, a right to a grant of the land.[189] The land ceases to be part of the public domain,[190] ipso jure,[191] and is converted to private property by the mere lapse or completion of the prescribed statutory period.

It was only in the case of Oh Cho v. Director of Lands[192] that the court declared that the rule that all lands that were not acquired from the government, either by purchase or grant, belong to the public domain has an exception.  This exception would be any land that should have been in the possession of an occupant and of his predecessors-in-interest since time immemorial.  It is this kind of possession that would justify the presumption that the land had never 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 the Public Land Act and Cariño was cited to support the applicant's claim of acquisitive prescription under the said Act.

All these years, Cariño had been quoted out of context simply to justify long, continuous, open and adverse possession in the concept of owner of public agricultural land.  It is this long, continuous, open and adverse possession in the concept of owner of thirty years both for ordinary citizens[194] and members of the national cultural minorities[195] that converts the land from public into private and entitles the registrant to a torrens certificate of title.

(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is Private.

The private character of ancestral lands and domains as laid down in the IPRA is further strengthened by the option given to individual ICCs/IPs over their individually-owned ancestral lands.  For purposes of registration under the Public Land Act and the Land Registration Act, the IPRA expressly converts ancestral land into public agricultural land which may be disposed of by the State.  The necessary implication is that ancestral land is private.  It, however, has to be first converted to public agricultural land simply for registration purposes.  To wit:

"Sec. 12.  Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the Land Registration Act 496-- Individual members of cultural communities, with respect to their individually-owned ancestral lands who, by themselves or through their predecessors-in-interest, have been in continuous possession and occupation of the same in the concept of owner since time immemorial or for a period of not less than thirty (30) years immediately preceding the approval of this Act and uncontested by the members of the same ICCs/IPs shall have the option to secure title to their ancestral lands under the provisions of Commonwealth Act 141, as amended, or the Land Registration Act 496.

For this purpose, said individually-owned ancestral lands, which are agricultural in character and actually used for agricultural, residential, pasture, and tree farming purposes, including those with a slope of eighteen percent (18%) or more, are hereby classified as alienable and disposable agricultural lands.

The option granted under this section shall be exercised within twenty (20) years from the approval of this Act."[196]

ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned ancestral lands.  This option is limited to ancestral lands only, not domains, and such lands must be individually, not communally, owned.

Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through their predecessors-in-interest, have been in continuous possession and occupation of the same in the concept of owner since time immemorial[197] or for a period of not less than 30 years, which claims are uncontested by the members of the same ICCs/IPs, may be registered under 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 lands are classified as alienable and disposable agricultural lands of the public domain, provided, they are agricultural in character and are actually used for agricultural, residential, pasture and tree farming purposes.  These lands shall be classified as public agricultural lands regardless of whether they have a slope of 18% or more.

The classification of ancestral land as public agricultural land is in compliance with the requirements of the Public Land Act and the Land Registration Act. C.A. 141, the Public Land Act, deals specifically with lands of the public domain.[198] Its provisions apply to those lands "declared open to disposition or concession" x x x "which have not been reserved for public or quasi-public purposes, nor appropriated by the Government, nor in any manner become private property, nor those on which a private right authorized and recognized by this Act or any other valid law x  x  x or which having been reserved or appropriated, have ceased to be so."[199] Act 496, the Land Registration Act, allows registration only of private lands and public agricultural lands.  Since ancestral domains and lands are private, if the ICC/IP wants to avail of the benefits of C.A. 141 and Act 496, the IPRA itself converts his ancestral land, regardless of whether the land has a slope of eighteen per cent (18%) or over,[200] from private to public agricultural land for proper disposition.

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 twenty (20) years from October 29, 1997, the date of approval of the IPRA.

Thus, ancestral lands and ancestral domains are not part of the lands of 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) forest or timber, (c) mineral lands, and (d) national parks.  Section 5 of the same Article XII mentions ancestral lands and ancestral domains but it does not 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 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 which is loss of land.  Land and space are of vital concern in terms of sheer survival of the ICCs/IPs.[201]

The 1987 Constitution mandates the State to "protect the rights of indigenous cultural communities to their ancestral lands" and that "Congress provide for the applicability of customary laws x x x in determining the ownership and extent of ancestral domain."[202] It is the recognition of the ICCs/IPs distinct rights of ownership over their ancestral domains and lands that breathes life into this constitutional mandate.

B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a limited form of ownership and does not include the right to alienate the same.

Registration under the Public Land Act and Land Registration Act recognizes the 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 Act on administrative legalization (free patent) of imperfect or incomplete titles and Section 48 (b) and (c) of the same Act on the judicial confirmation of imperfect or incomplete titles.  Thus:

"Sec. 44.  Any natural-born citizen of the Philippines who is not the owner of 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 predecessors-in-interest, a tract or tracts of agricultural public lands subject to disposition, or who shall have paid the real estate tax thereon while the same has not been occupied by any person shall be entitled, under the provisions of this chapter, to have a free patent issued to him for such tract or tracts of such land not to exceed twenty-four hectares.

A member of the national cultural minorities who has continuously occupied and cultivated, either by himself or through his predecessors-in-interest, a tract or tracts of land, whether disposable or not since July 4, 1955, shall be entitled to the right granted in the preceding paragraph of this section: Provided, That at the time he files his free patent application he is not the owner of any real property secured or disposable under the provision of the Public Land Law.[203]

x      x                                  x.

"Sec. 48.  The following described citizens of the Philippines, occupying lands of the public domain or claiming to own any such lands or an interest therein, but 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 claims and the issuance of a certificate of title therefor, under the Land Registration Act, to wit:

(a) [perfection of Spanish titles] xxx.

(b) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive, and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition or ownership, for at least thirty years immediately preceding the filing of the application for confirmation of title except when prevented by war or force majeure.  These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this Chapter.

(c) Members of the national cultural minorities who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and 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 sub-section (b) hereof."[204]

Registration under the foregoing provisions presumes that the land was originally public agricultural land but because of adverse possession since July 4, 1955 (free patent) or at least thirty years (judicial confirmation), the land has become private.  Open, adverse, public and continuous possession is sufficient, provided, the possessor makes proper application therefor.  The possession has to be confirmed judicially or administratively after which a torrens title is issued.

A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights of ownership under the civil law.  The Civil Code of the Philippines defines ownership in Articles 427, 428 and 429.  This concept is 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 things or rights.  It primarily includes the right of the owner to enjoy and dispose of the thing owned.  And the right to enjoy and dispose of the thing includes the 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 owned,[207] and the right to exclude from the possession of the thing owned by any other person to whom the owner has not transmitted such thing.[208]

1.  The Indigenous Concept of Ownership and Customary Law.

Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes the indigenous concept of ownership of the ICCs/IPs over their ancestral domain.  Thus:

"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that ancestral domains and all resources found therein shall serve as the material bases of their cultural integrity.  The indigenous concept of ownership generally holds that ancestral domains are the ICCs/IPs private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed.  It likewise covers sustainable traditional resource rights."

The right of ownership and possession of the ICCs/IPs to their ancestral domains is held under the indigenous concept of ownership.  This concept maintains the view that ancestral domains are the ICCs/IPs private but community property.  It is private simply because it is not part of the public domain.  But its private character ends there.  The ancestral domain is owned in common by the ICCs/IPs and not by one particular person.  The IPRA itself provides that areas within the ancestral domains, whether delineated or not, are presumed to be communally held.[209] These communal rights, however, are not exactly the same as co-ownership rights under the Civil Code.[210] Co-ownership gives any co-owner the right to demand partition of the property held in common.  The Civil Code expressly provides that "[n]o co-owner shall be obliged to remain in the co-ownership." Each co-owner may demand at any time the partition of the thing in common, insofar as his share is concerned.[211] To allow such a right over ancestral domains may be destructive not only of customary law of the community but of the very community itself.[212]

Communal rights over land are not the same as corporate rights over real property, much less corporate condominium rights.  A corporation can exist only for a maximum of fifty (50) years subject to an extension of another fifty years in any single instance.[213] Every stockholder has the right to disassociate himself from the corporation.[214] Moreover, the corporation itself may be dissolved voluntarily or involuntarily.[215]

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

Ancestral lands are also held under the indigenous concept of ownership.  The lands are communal.  These lands, however, may be transferred subject to the following limitations:  (a) only to the members of the same ICCs/IPs; (b) in accord with customary laws and traditions; and (c) subject to the right of redemption of the ICCs/IPs for a period of 15 years if the land was transferred to a non-member of the ICCs/IPs.

Following the constitutional mandate that "customary law govern property rights or relations in determining the ownership and extent of ancestral domains,"[216] the IPRA, by legislative fiat, introduces a new concept of ownership.  This is a concept that has long existed under customary law.[217]

Custom, from which customary law is derived, is also recognized under the Civil Code as a source of law.[218] Some articles of the Civil Code expressly provide that custom should be applied in cases where no codal provision is applicable.[219] In other words, in the absence of any applicable provision in the Civil Code, custom, when duly proven, can define rights and liabilities.[220]

Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies to ICCs/IPs.  Its recognition does not depend on the absence of a specific provision in the civil law.  The indigenous concept of ownership under customary law is specifically acknowledged and recognized, and coexists with the civil law concept and the laws on land titling and land registration.[221]

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

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

The moral import of ancestral domain, native land or being native is "belongingness" to the land, being people of the land-- by sheer force of having sprung from the land since time beyond recall, and the faithful nurture of the land by the sweat of one's brow.  This is fidelity of usufructuary relation to the land-- the possession of stewardship through perduring, intimate tillage, and the mutuality of blessings between man and land; from man, care for land; from the land, sustenance for man.[222]

C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in Section 2, Article XII of the 1987 Constitution.

1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands

The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands.  Section 7 provides for the rights over ancestral domains:

"Sec. 7. Rights to Ancestral Domains.-- The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights include:

a) Right of Ownership.- The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;

b) Right to Develop Lands and Natural Resources.-- Subject to Section 56 hereof, the right to develop, control and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights;"

c) Right to Stay in the Territories.-- The right to stay in the territory and not to be removed therefrom. No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain. x x x;

d) Right in Case of Displacement.-- In case displacement occurs as a result of natural catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary life support systems: x x x;

e) Right to Regulate the Entry of Migrants.-- Right to regulate the entry of migrant settlers and organizations into their domains;

f) Right to Safe and Clean Air and Water.--For this purpose, the ICCs/IPs shall have access to integrated systems for the management of their inland waters and air space;

g) Right to Claim Parts of Reservations.-- The right to claim parts of the ancestral domains which have been reserved for various purposes, except those reserved and intended for common and public welfare and service;

h) Right to Resolve Conflict.-- Right to resolve land conflicts in accordance with customary laws of the area where the land is located, and only in default thereof shall the complaints be submitted to amicable settlement and to the Courts of Justice whenever necessary."

Section 8 provides for the rights over ancestral lands:

"Sec. 8. Rights to Ancestral Lands.-- The right of ownership and possession of the ICCs/IPs to their ancestral lands shall be recognized and protected.

a) Right to transfer land/property.-- Such right shall include the right to transfer land or property rights to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.

b) Right to Redemption.-- In cases where it is shown that the transfer of land/property rights by virtue of any agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem the same within a period not exceeding fifteen (15) years from the date of transfer."

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 actually occupied by the ICCs/IPs, (c) sacred places, (d) traditional hunting and fishing grounds, and (e) all improvements made by them at any time within the 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 right to resettlement in case of displacement; (d) the right to regulate the entry of migrants; (e) the right to safe and clean air and water; (f) the right to claim parts of the ancestral domains as reservations; and (g) the right to resolve conflict in accordance with customary laws.

Section 8 governs their rights to ancestral lands.  Unlike ownership over the 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 thereof.  This is in keeping with the option given to ICCs/IPs to secure a torrens title over the ancestral lands, but not to domains.

2.  The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains Does Not Deprive the State of Ownership Over the Natural Resources and Control and Supervision in their Development and Exploitation.

The Regalian doctrine on the ownership, management and utilization of natural resources is declared in Section 2, Article XII of the 1987 Constitution, viz:

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.  With the exception of agricultural lands, all other natural resources shall not be alienated.  The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State.  The State may directly undertake such activities, or, it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens.  Such agreements may be for a period not exceeding twenty-five years, renewable for  not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, 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, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country.  In such agreements, the state shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution."[223]

All lands of the public domain and all natural resources-- waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources-- are owned by the State.  The Constitution provides that in the exploration, development and utilization of these natural resources, the State exercises full control and supervision, and may undertake the same in four (4) modes:

1.  The State may directly undertake such activities; or

2.  The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or qualified corporations;

3.  Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens;

4.  For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance.

As owner of the natural resources, the State is accorded primary power and responsibility in the exploration, development and utilization of these natural resources.  The State may directly undertake the exploitation and development by itself, or, it may allow participation by the private sector through co-production,[224] joint venture,[225] or production-sharing agreements.[226] These 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 resources by Filipino citizens.  For the large-scale exploration of these resources, specifically minerals, petroleum and other mineral oils, the State, through the President, may enter into technical and financial assistance agreements with foreign-owned corporations.

Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of 1991 (R.A. 7076) the three types of agreements, i.e., co-production, joint venture or production-sharing, may apply to both large-scale[227] and small-scale mining.[228] "Small-scale mining" refers to "mining activities which rely heavily on manual labor using simple implements and methods and do not use explosives or heavy mining equipment."[229]

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 right of ICCs/IPs in their ancestral domains includes ownership, but this "ownership" is expressly defined and limited in Section 7 (a) as:

"Sec. 7. a) Right of ownership-- The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;"

The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains." It will be noted that this enumeration does not mention bodies of water not occupied by the ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the traditional fishing grounds, forests or timber in the sacred places, etc. and all other natural resources found within the ancestral domains.  Indeed, the right of ownership under Section 7 (a) does not cover "waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all other natural resources" enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State.

The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies with the Regalian doctrine.

(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7 (a) of the IPRA And is Unconstitutional.

The Rules Implementing the IPRA[230] in Section 1, Part II, Rule III reads:

"Section 1. Rights of Ownership.  ICCs/IPs have rights of ownership over lands, waters, and natural resources and all improvements made by them at any time within the ancestral domains/ lands.  These rights shall include, but not limited to, the right over the fruits, the right to possess, the right to use, right to consume, right to exclude and right to recover ownership, and the rights or interests over land and natural resources.  The right to recover shall be particularly applied to lands lost through fraud or any form or vitiated consent or transferred for an unconscionable price."

Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and natural resources." The term "natural resources" is not one of 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 necessarily include the right to claim ownership over the natural resources found on or under the land.[231] The IPRA itself makes a distinction between land and natural resources. Section 7 (a) speaks of the right of ownership only over 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 discussed later, do not give the ICCs/IPs the right of ownership over these resources.

The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically and categorically challenged by petitioners.  Petitioners actually assail the constitutionality of the Implementing Rules in general.[232] Nevertheless, to avoid any confusion in the implementation of the law, it is necessary to declare that the inclusion of "natural resources" in Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of Section 7 (b) of the law and is contrary to Section 2, Article XII of the 1987 Constitution.

(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under Paragraph 3, Section 2 of Article XII of the Constitution.

Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants the ICCs/IPs the right to manage them, viz:

"Sec. 7 (b) Right to Develop Lands and Natural Resources.-- Subject to Section 56 hereof, right to develop, control and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights;"

The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the following rights:

a) the right to develop, control and use lands and territories traditionally occupied;

b) the right to manage and conserve natural resources within the territories and uphold the responsibilities for future generations;

c) the right to benefit and share the profits from the allocation and utilization of the natural resources found therein;

d) the right to negotiate the terms and conditions for the exploration of natural resources for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws;

e) the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project;

f) the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights.[233]

Ownership over the natural resources in the ancestral domains remains 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 from their allocation and utilization, and "negotiate the terms and conditions for their exploration" for the purpose of "ensuring ecological and environmental protection and conservation measures." It must be noted that the right to negotiate the terms and conditions over the natural resources covers only their exploration which must be for the purpose of ensuring ecological and environmental protection of, and conservation measures in the ancestral domain.  It does not extend to the exploitation and development of natural resources.

Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or stewardship.  For the ICCs/IPs may use these resources and share in the profits of their utilization or negotiate the terms for their exploration.  At the same time, however, the ICCs/IPs must ensure that the natural resources within their ancestral domains are conserved for future generations and that the "utilization" of these resources must not harm the ecology and environment pursuant to national and customary laws.[234]

The limited rights of "management and use" in Section 7 (b) must be taken to contemplate small-scale utilization of natural resources as distinguished from large-scale.  Small-scale utilization of natural resources is expressly allowed  in the third paragraph of Section 2, Article XII of the Constitution "in recognition of the plight of forest dwellers, gold panners, 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 environmental and ecological protection within the domains, which duties, by their very nature, necessarily reject utilization in a large-scale.

(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed Under Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.

Section 57 of the IPRA provides:

"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-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) 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 the community, pursuant to its own decision-making process, has agreed to allow such operation: Provided finally, That the NCIP may exercise visitorial powers and take appropriate action to safeguard the rights of the ICCs/IPs under the same contract."

Section 57 speaks of the "harvesting, extraction, development or exploitation of natural resources within ancestral domains" and "gives the ICCs/IPs 'priority rights' therein." The terms "harvesting, extraction, development or exploitation" of any natural resources within the ancestral domains obviously refer to large-scale utilization.  It is utilization not merely for subsistence but for commercial or other extensive use that require technology other than manual labor.[236] The law recognizes the probability of requiring a non-member of the ICCs/IPs to participate in the development and utilization of the natural resources and thereby allows such participation for a 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-member and members of the ICCs/IPs.

Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural resources.  Instead, the law only grants the ICCs/IPs "priority rights" in the development or exploitation thereof.  Priority means giving preference.  Having priority rights over the natural resources does not necessarily mean ownership rights.  The grant of priority rights implies that there is a superior entity that owns these resources and this entity has the power to grant preferential rights over the resources to whosoever itself chooses.

Section 57 is not a repudiation of the Regalian doctrine.  Rather, it is an affirmation of the said doctrine that all natural resources found within the ancestral domains belong to the State.  It incorporates by implication the Regalian doctrine,  hence, requires that the provision be read in the light of Section 2, Article XII of the 1987 Constitution.  Interpreting Section 2, Article XII of the 1987 Constitution[237] in relation to Section 57 of IPRA, the State, as owner of these natural resources, may directly undertake the development 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 which the natural resources are found by entering into a co-production, joint venture, or production-sharing agreement with them.  The State may likewise enter into any of said agreements with a non-member of the ICCs/IPs, whether natural or juridical, or enter into agreements with foreign-owned corporations involving either technical or financial assistance for the large-scale exploration, development and utilization of minerals, petroleum, and other mineral oils, or allow such non-member to participate in its agreement with the ICCs/IPs.  If the State decides to enter into an agreement with a non-ICC/IP member, the National Commission on Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the agreement shall be protected.  The agreement shall be for a period of 25 years, renewable for another 25 years.

To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the State, as owner of these resources, has four (4) options: (1) it may, of and by itself, directly undertake the development and exploitation of the natural resources; or (2) it may recognize the priority rights of the ICCs/IPs by entering into an agreement with them for such development and exploitation; or (3) it may enter into an agreement with a non-member of the ICCs/IPs, whether natural or juridical, local or foreign; or (4) it may allow such non-member to participate in the agreement with the ICCs/IPs.

The rights granted by the IPRA to the ICCs/IPs over the natural resources 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 small-scale utilization of these resources, and at the same time, a priority in their large-scale development and exploitation.  Section 57 does not mandate the State to automatically give priority to the ICCs/IPs.  The State has several options and it is within its discretion to choose which option to pursue.  Moreover, there is nothing in the law that gives the ICCs/IPs the right to solely undertake the large-scale development of the natural resources within their domains.  The ICCs/IPs must undertake such endeavour always under State supervision or control.  This indicates that the State does not lose control and ownership over the resources even in their exploitation.  Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs who, as actual occupants of the land where the natural resources lie, have traditionally utilized these resources for their subsistence and survival.

Neither is the State stripped of ownership and control of the natural resources by the following provision:

"Section 59. Certification Precondition.-- All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing or granting any concession, license or lease, or entering into any production-sharing agreement.  without prior certification from the NCIP that the area affected does not overlap with any ancestral domain.  Such certification shall only be issued 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 without the free and prior informed and written consent of the ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, 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 to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process."

Concessions, licenses, lease or production-sharing agreements for the exploitation of natural resources shall not be issued, renewed or granted by all departments and government agencies without prior certification from the NCIP that the area subject of the agreement does not overlap with any ancestral domain.  The NCIP certification shall be issued only after a field-based investigation shall have been conducted and the free and prior informed written consent of the ICCs/IPs obtained. Non-compliance with the consultation requirement gives the ICCs/IPs the right to stop or suspend any project granted by any department or government agency.

As its subtitle suggests, this provision requires as a precondition for the issuance of any concession, license or agreement over natural resources, that a certification be issued by the NCIP that the area subject of the agreement does not lie within any ancestral domain.  The provision does not vest the NCIP with power over the other agencies of the State as to determine whether to grant or deny any concession or license or agreement.  It merely gives the NCIP the 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 to agreements over natural resources that do not necessarily lie within the ancestral domains.  For those that are found within the said domains, Sections 7(b) and 57 of the IPRA apply.

V.  THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS INTERNATIONAL MOVEMENT.

The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to prehistoric times.  The movement received a massive impetus during the 1960's from two sources.  First, the decolonization of Asia and Africa brought into the limelight the possibility of peoples controlling their own destinies.  Second, the right of self-determination was enshrined in the UN Declaration on Human Rights.[238] The rise of the civil rights movement and anti-racism brought to the attention of North American Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for fundamental rights and freedoms.

In 1974 and 1975, international indigenous organizations were founded,[239] and during the 1980's, indigenous affairs were on the international agenda.  The people of the Philippine Cordillera were the first Asians to take part in the international indigenous movement.  It was the Cordillera People's Alliance that 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 bodies in the world.[240]

Presently, there is a growing concern for indigenous rights in the international scene.  This came as a result of the increased publicity focused on the continuing disrespect for indigenous human rights and the destruction of the indigenous peoples' environment, together with the national governments' inability to deal with the situation.[241] Indigenous rights came as a result of both human rights and environmental protection, and have become a part of today's priorities for the international agenda.[242]

International institutions and bodies have realized the necessity of applying policies, programs and specific rules concerning IPs in some nations.  The World Bank, for example, first adopted a policy on IPs as a result of the dismal experience of projects in Latin America.[243] The World Bank now seeks to apply its current policy on IPs to some of its projects in Asia.  This policy has provided an influential model for the projects of the Asian Development Bank.[244]

The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State policy the promotion of their rights within the framework of national unity and development.[245] The IPRA amalgamates the Philippine category of ICCs with the international category of IPs,[246] and is heavily influenced by both the International Labor Organization (ILO) Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.[247]

ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in Independent Countries"[248] and was adopted on June 27, 1989.  It is based on the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and many other international instruments on the prevention of discrimination.[249] ILO Convention No. 169 revised the "Convention 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 new international standards on indigenous peoples "with a view to removing the assimilationist orientation of the earlier standards," and recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development."[250]

CONCLUSION

The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious differences.  These differences were carried over and 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 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 are relevant to the evolution of Philippine culture and are vital to the 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 of myths and biases but through common experiences in the course of history.  The Philippines became a democracy a centennial ago and the decolonization 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 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.

With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples Rights Act of 1997.



[1] Chief Judge, US Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School.

[2] The University of Chicago Law Review, Vol. 67, Summer 2000, No. 3, p. 573.

[3] Dominium is distinguished from imperium which is the government authority possessed by the state expressed in the concept of sovereignty-- Lee Hong Hok v. David, 48 SCRA 372, 377 [1972].

[4] Valenton v. Murciano, 3 Phil. 537, 543 [1904]; See also Florencio D.R. Ponce, The Philippine Torrens System, p. 13 [1964].

[5] Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986]; these grants were better known as repartimientos and encomiendas.  Repartimientos were handouts to the military as fitting reward for their services to the Spanish crown.  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 them.-- Ponce, supra, p. 12, citing Benitez, History of the Philippines, pp. 125-126.

[6] Narciso Pena, Registration of Land Titles and Deeds, p. 2 [1994].

[7] The Mortgage Law is a misnomer because it is primarily a law on registration of property and secondarily a mortgage law-- Ponce, supra, at 16.

[8] Ponce, supra, at 15.

[9] 3 Phil. 537 [1904].

[10] Id. at 540.

[11] Id. at 548.

[12] Id. at 543-544.

[13] Id. at 543.

[14] Id. at 542-543.  These comments by the court are clear expressions of the concept that Crown holdings embraced both imperium and dominium—Ma. Lourdes Aranal-Sereno and Roan Libarios,  The Interface Between National Land Law and Kalinga Land Law, 58 P.L.J. 420, 423 [1983].

[15] Id. at 545-546.

[16] Id. at 543.

[17] Id. at 557.

[18] Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6 Phil. 320 [1906]; Tiglao v. Insular Government, 7 Phil. 80 [1906]; and Cariño v. Insular Government, 7 Phil. 132 [1906]; all decided by the Philippine Supreme Court.

[19] Please see Section 70, Act 926.

[20] Ponce, supra, at 33.

[21] Montano v. Insular Government, 12 Phil. 572 [1909]; also cited in Ponce, supra, at 32.

[22] Archbishop of Manila v. Director of Lands, 27 Phil. 245 [1914]; also cited in Ponce, supra, at 32.

[23] Antonio H. Noblejas, Land Titles and Deeds, p. 250 [1961].

[24] Ponce, supra, at 32.

[25] Peña, Registration of Land Titles and Deeds, p. 26 [1982]; Noblejas, supra, at 32.

[26] Noblejas, supra, at 32.

[27] Ponce, supra, at 123-124; Noblejas, supra, at 33.

[28] 2 Aruego, The Framing of the Philippine Constitution, p. 592 [1937].

[29] Id. at 600.

[30] Id. at 600-601.

[31] Ibid.

[32] Section 7.

[33] Section 8.

[34] Sections 13 to 20.

[35] Sections 21 to 28.

[36] Sections 29 to 37.

[37] Sections 38 and 40.

[38] Sections 74 to 77.

[39] Section 69.

[40] Section 73.

[41] Convention Conerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989.

[42] Guide to R.A. 8371, published by the Coalition for Ips Rights and ancestral Domains in cooperation with the ILO and Bilance-Asia Department, p. 4 [1999]—hereinafter referred to as Guide to R.A. 8371.

[43] Taken from the list of IPs sbmitted by Rep. Andolana to the house of Representatives during the deliberations on H.B. No. 9125—Interpellations of Aug. 20, 1997, pp. 00086-00095.  “lost tribes” such as the Lutangan and Tatang have not been included.

[44] How these people came to the Philippines may be explained by two theories.  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 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 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 today by the Kalinga, Gaddang, Isneg, Mangyan, Tagbanua, Manobo, Mandaya, Subanon, and Sama.  The first group was pushed inland as the second occupied 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 metal age technology.  They are represented by the Christianized and Islamized Filipinos who pushed the Indonesian groups inland and occupied much of the coastal, lowland and downstream areas.

A second view is postulated by Robert Fox, F. Landa Jocana, Alfredo Evangelista, and Jesus Peralta.  Jocano maintains that the Negritos, Indonesians and Malays stand co-equal as ethnic groups without any one being dominant, racially or culturally.  The geographic distribution of the ethno-linguistic groups, which shows overlapping of otherwise similar racial strains in both upland and lowland cultures or coastal and inland communities, suggests a random and unstructured advent of different kinds of groups in the archipelago—Samuel K. Tan, A History of the Philippines, published by the Manila Studies Association, Inc. and the Philippine National Historical society, Inc., pp. 33-34 [1997]; Teodoro A. Agoncillo, History of the Filipino People, p. 21 [1990].

[45] Tan, supra, at 35-36.

[46] Onofre D. Corpuz, The Roots of the Filipino Nation, Philippine Centennial (1898-1998) Edition, vol. 1, p. 13, Aklahi foundation, Inc. [1989].  It was in 800-1,000 A.D. that the Ifugaos of Northern Luzon built the rice terraces—Id. at 37.

[47] Id. at 5-6.

[48] Id. at 13.

[49] Teodoro A. Agoncillo, History of the Filipino People, p. 54 [1990].

[50] Corpuz, supra, at 5.

[51] Id. at 44-45.

[52] Agoncillo, supra, at 40.

[53] Id. at 40-41.

[54] Rafael Iriarte, History of the Judicial System, the Philippine Indigenous Era Prior to 1565, unpublished work submitted as entry to the Centennial Essay-Writing Contest sponsored by the National Centennial Commission and the Supreme Court in 1997, p. 103, citing Perfecto V. Fernandez, Customs Laws in Pre-Conquest Philippines, UP Law Center, p. 10 [1976].

[55] Agoncillo, supra, at 41.

[56] Amelia Alonzo, The History of the Judicial System in the Philippines, Indigenous Era Prior to 1565, unpublished work submitted as entry to the Centennial Essay-Writing Contest sponsored by the National Centennial Commission and the Supreme Court in 1997.

[57] Agoncillo, supra, at 42.

[58] Renato Constantino, A Past Revisited , p. 38 [1975].

[59] Samuel K. Tan, A History of the Philippines, published by the Manila Studies Ass’n., Inc. and the Phil. National Historical Society, Inc., p. 43 [1997].

[60] Id.

[61] Id. at 43-44.

[62] Tan, supra, at 47-48.

[63] Id. at 48-49.

[64] Cacho v. Government of the P.I., 28 Phil. 616, 625-627 [1914]; see also Ponce, The Philippine Torrens System, pp. 11-12 [1964].  In Philippine pre-colonial history, there was only one recorded transaction on the purchase of 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 century.  The purchase price for the island was a gold salakot and a long gold necklace – Agoncillo, supra, at 25.

[65] Constantino, supra, at 38.

[66] Corpuz, supra, at 39.

[67] Resettlement-- “bajo el son de la campana” (under the sound of the bell) or “bajo el toque de la campana” (Under the peal of the bell).

[68] People v. Cayat, 68 Phil. 12, 17 [1939].

[69] Id. at 17, citing the Decree of the Governor-General of the Philippines, Jan. 14, 1887.

[70] Agoncillo, supra, at 80.

[71] Id. at 80.

[72] Corpuz, supra, at 277-278.

[73] Id. at 277.

[74] Id., N.B. But see discussion in Cariño v. Insular Government, infra, where the United States Supreme Court found that the Spanish decrees in the Philippines appeared to recognize that the natives owned some land.  Whether in the implementation of these decrees the natives’ ancestral rights to land were actually respected was not discussed by the U.S. Supreme Court; see also Note 131, infra.

[75] Tan, supra, at 49-50.

[76] Id. at 67.

[77] Id. at 52-53.

[78] Id. at 53.

[79] Id. at 55.

[80] People v. Cayat, 68 Phil. 12, 17 [1939].

[81] Memorandum of the Secretary of the Interior, quoted in Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 714 [1919]; also cited in People v. Cayat, supra, at 17-18.

[82] Rubi v. Provincial Board of Mindoro, supra, at 693.

[83] Charles Macdonald, Indigenous Peoples of the Philippines:  Between Segregation and Integration, Indigenous Peoples of Asia, p. 348, ed. by  R.H. Barnes, A. Gray and B. Kingsburry, pub. by Association for Asian Studies [1995].  The BNCT made a Bontok and subanon ethnography, a history of Sulu genealogy, and a compilation on unhispanized peoples in northern Luzon.—Owen J. Lynch, Jr.,  The Philippine Colonial Dichotomy: Attraction and Disenfranchisement, 63 P. L. J. 139-140 [1988].

[84] R.A. No. 1888 of 1957.

[85] See People v. Cayat, supra, at 21; See also Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 694 [1919]

[86] MacDonald, Indigenous Peoples of the Philippines, supra, at 351.

[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 Domain Rights:  Issues, Responses, and Recommendations, Ateneo Law Journal, vol. 38, No. 1, p. 92 [1993].

[88] Section 11, Art. XV, 1973 Constitution.

[89] Presidential Decrees Nos. 1017 and 1414.

[90] The PANAMIN, however, concentrated funds and resources on image-building, publicity, and impact projects.  In Mindanao, the agency resorted to a policy of forced resettlement on reservations, militarization and intimidation--  MacDonald, Indigenous Peoples of the Philippines, supra, at 349-350.

[91] No occupancy certificates were issued, however, because the government failed to release the decree’s implementing rules and regulations--  Abelardo, supra, at 120-121.

[92] Id., Note 177.

[93] Id., at 93-94.

[94] MacDonald, Indigenous People of the Philippines, supra, at 351.

[95] E.O. Nos. 122-A, 122-B and 122-C.  The preamble of E.O. No. 122-B states:

“Believing that the new government is committed to formulate more vigorous policies, plans, programs, and projects for tribal Filipinos, otherwise known as Indigenous Cultural Communities, taking into consideration their communal aspirations, customs, traditions, beliefs, and interests, in order to promote and preserve their rich cultural heritage and insure their participation in the country’s development for national unity; xxx”

[96] Article II, sec. 22; Article VI, sec. 5, par. 2; Article XII, sec. 5; Article XIII, sec. 6; Article XIV, sec. 17; and Article XVI, sec. 12.

[97] MacDonald, Indigenous Peoples of the Philippines, supra, at 345.

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

[99] Cordillera Studies Program, Land Use and Ownership and Public Policy in the Cordillera, 29-30 [n.d.]; also cited in Dante B. Gatmaytan, Ancestral Domain Recognition in the Philippines:  Trends in Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 47-48 [1992].

[100] Abelardo, Ancestral Domain Rights, supra, at 98-99, citing Ponciano L. Bennagen, Indigenous Attitudes Toward Land and Natural Resources of Tribal Filipinos, 31 National Council of Churches in the Philippines Newsletter, Oct.-Dec. 1991, at 4-9.

[101] Id. at 99, citing June Prill-Brett, Bontok Land Tenure (UP Law library, mimeographed).

[102] Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface of National Land Law and Kalinga Law, 58 P.L.J. 420, 440-441 [1983].

[103] Ibid.

[104] Ibid.

[105] Ibid.

[106] Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface, supra, at 420.

[107] Senate Bill No. 1728 was co-sponsored by Senator Macapagal-Arroyo and co-authored by Senators Alvarez, Magsaysay, Revilla, Mercado, Enrile, Honasan, Tatad, Maceda, Shahani, Osmena and Romulo.

             The Eighth Congress, through Senators Rasul, Estrada and Romulo filed a bill to operationalize the mandate of the 1987 Constitution on indigenous peoples.  The bill was reported out, sponsored an interpellated but never enacted into law.  In the Ninth Congress, the bill filed by Senators Rasul and Macapagal-Arroyo was never sponsored and deliberated upon in the floor.

[108] Sponsorship Speech of Senator Flavier, Legislative History of SBN 1728, Tenth Congress, Second Regular Session, Senate, Oct. 16, 1996, pp. 15-16.

[109] Id. at 12.

[110] Id. at 17-18.

[111] Id. at 13.

[112] Journal of the Tenth Congress of the Philippines, Senate, Session No. 5, Aug. 5-6, 1997, pp. 86-87.

[113] Co-authors of the bill were Reps. Ermita, Teves, Plaza, Calalay, Recto, Fua, Luciano, Abad, Cosalan, Aumentado, de la Cruz, Bautista, Singson, Damasing, Romualdo, Montilla, Germino, Verceles—Proceedings of Sept. 4, 1997, pp. 00107-00108.

[114] Sponsorship speech of Rep. Andolana of House Bill No. 9125, March 20, 1997.

[115] Interpellation of Aug. 20, 1997, 6:16 p.m., p. 00061.

[116] Section 3 [a], IPRA.

[117] Section 3 [b], IPRA.

[118] Guide to R.A. 8371, p. 14.

[119] Section 44 [e], IPRA.

[120] Section 51, IPRA.

[121] Guide to R.A. 8371, p. 15.

[122] A CADT refers to a title formally recognizing the right of possession and ownership of ICCs/IPs over their ancestral domains identified and delineated in acordance with the IPRA—Rule II [c], Rules & Regulations Implementing the IPRA, NCIP Admin. Order No. 1.

[123] Section 53 [a], IPRA.

[124] A CALT refers to a title formally recognizing the rights of the ICCs/IPs over their ancestral lands-- Rule II [d], Implementing Rules, NCIP A.O. No. 1.

[125] Section 52 [k], IPRA.

[126] Section 3 [1], IPRA.

[127] Section 11, IPRA.

[128] Ibid.

[129] 41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed. 594.

[130] Sponsorship Speech of Senator Juan Flavier, Leg. History of SBN 1728, Tenth Congress, Second Regular Session, Oct. 16, 1996, p. 13.

[131] It was the practice of the Spanish colonial government not to issue titles to Igorots—Owen J. Lynch, Jr., Invisible Peoples and a Hidden Agenda:  The Origins of Contemporary Philippine Land Laws (1900-1913), 63 P.L.J. 249, 288 [1988], citing the testimony of Benguet Provincial Governnor William F. Pack, Records at 47, Cariño.

[132] Maura Law or the Royal Decree of Feb. 13, 1894.

[133] Later named Camp John Hay.

[134] Lynch, Invisible Peoples, supra, at 288-289.

[135] 7 Phil. 132 [1906].

[136] In 1901, Cariño had entered into a promissory agreement with a U.S. merchant in Manila.  The note obliged Cariño to sell the land at issue “as soon as 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 290, citing Government’s Exhibit G, Records, at 137-138, Cariño.

[137] Cariño v. Insular Government, supra, at 939.

[138]Ibid.

[139]Id. at 940.

[140]Id. at 941.

[141]Id. at 941-942.

[142]Aranal-Sereno and Libarios, The Interface Between Kalinga Land Law, supra at 428--This artcile was one of those circulated among the Constitutional Commissioners in the formulation of Sec. 5, Article XII of the 1987 Constitution (4 Record of the Constitutional Commission 33).

[143]Id. at 944.

[144]Certificate of Title No. 2 covering the 148 hectares of Baguio Municipality was issued not in the name of Cariño who died on June 6, 1908, but to his lawyers John Hausserman and Charles Cohn and his attorney-in-fact Metcalf Clarke.  Hausserman, Cohn and Clarke sold the land to the U.S. Government in a Deed of Quitclaim--Richel B. Langit, Igorot Descendants Claim Rights to Camp John Hay, Manila Times, p. 1, Jan. 12, 1998.

[145]Id. at 939.

[146]57 P.L.J. 268, 293-296 [1982].

[147]From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish parts of his 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 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 Peoples and a Hidden Agenda:  The Origins of Contemporary Philippine Land Laws (1900-1913), 63 P.L.J. 249.

[148]“Native title” is a common law recognition of pre-existing aboriginal land interests in Autsralia-- Maureen Tehan, Customary Title, Heritage Protection, and Property Rights in Australia: Emerging Patterns of Land Use in the Post-Mabo Era, 7 Pacific Rim Law & Policy Journal, No. 3, p. 765 [June 1998].

[149]Lynch, Native Titles, supra, Note 164, p. 293.

[150]39 Phil. 660 [1919].

[151]Id. at 712-713.

[152]Id. at 694.

[153]Id. at 700.

[154]42 C.J.S., Indians, Sec. 29 [1944 ed.].

[155]There are 3 kinds of Indian reservations: (a) those created by treaties prior to 1871; (b) those created by acts of Congress since 1871; and (c) those made by 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, 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, 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 reservations proper.

             Until 1871, Indian tribes were recognized by the United States as possessing the attributes of nations to the extent that treaties were made with them.  In that year, however, Congress, by statute, declared its intention thereafter to make the Indian tribes amenable directly to the power and authority of the United States by the immediate exercise of its legislative power over them, instead of 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].

[156]42 C.J.S. Indians, Sec. 28 [1944 ed.].

[157]Ibid.; see also U.S. v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct. 248, 314 U.S. 339, 86 L. Ed. 260 [1941].

[158]Ibid.

[159]8 Wheat 543, 5 L. Ed. 681 [1823].

[160]Id. at 680.

[161]Id. at 689.

[162]Id. at 696; see also 41 ALR Fed 425, Annotation:  Proof and Extinguishment of Aboriginal Title to Indian Lands, Sec. 2[a] [1979].

[163]Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55, 30 L. Ed. 330, 335 [1886].

[164]Lynch, Native Title, supra, at 293-294; Cohen, Original Indian Title, 32 Minn. L.R. 48-49 [1947].

[165]6 Pet 515, 8 L.Ed. 483 [1832].

[166]Id. at 499.

[167]Id. at 500.

[168]Id. at 501.

[169]The title of the government to Indian lands, the naked fee, is a sovereign title, the government having no landlord from whom it holds the fee-- Shoshone Tribe of Indians of Wind River Reservation in Wyoming v. U.S., 85 Ct. Cl. 331, certiorari granted U.S. v. Shoshone Tribe of Indians, 58 S. Ct. 609, 303 U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct. 794, 304 U.S. 111, 82 L. Ed. 1213, 1218-1219 [1938].

[170]Buttz v. Northern Pac. R. Co., Dak., at 30 L. Ed. 330, 335; Beecher v. Wetherby, Wis., 95 U.S. 517, 24 L. Ed. 440, 441 [1877]; see also 42 C.J.S., Indians, Sec. 28 [1944 ed.].

[171]Annotation, Proof and Extinguishment of Aboriginal title to Indian Lands, 41 ALR Fed 425, Sec. 2 [b] [1979]-- hereinafter cited as Aboriginal Title to Indian Lands.

[172]Ibid.; see also Tee Hit Ton Indians v. U.S., 348 U.S. 272, 99 L. Ed. 314, 320, 75 S. Ct. 313 [1955], reh den 348 U.S. 965, 99 L. Ed. 753, 75 S. Ct. 521.

[173]Ibid.; Tee Hit Ton Indians v. U.S., at 99 L. Ed. 320.

[174]Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73, 94 S Ct. 772 [1974]; U.S. v. Alcea Bank of Tillamooks, 329 U.S. 40, 91 L. Ed. 29. 67 S. Ct. 167 [1946].

[175]For compensation under the Indian Claims Commission Act, the proof of aboriginal title rests on actual, exclusive and continuous use and occupancy for a long time prior to the loss of the property.  (The Indian Claims Commission Act 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.) -- Aboriginal Title to Indian Lands, supra, at Secs. 2[a], 3[a], pp. 431, 433, 437.

[176]Aboriginal Title to Indian Lands, supra, at Sec. 2[b], p. 435.

[177]41 Am Jr 2d, Indians, Sec. 59 [1995 ed.].

[178]An allotment of Indian land contains restrictions on alienation of the land.  These restrictions extend to a devise of the land by will-- Missouri, K. & T.R. Co. v. U.S., 235 U.S. 37, 59 L. Ed. 116,. 35 S. Ct. 6 [1914]; A railroad land grant that falls within Indian land is null and void-- Northern P. R. Co. v. U.S., 227 U.S. 355, 57 L.Ed. 544,33 S. Ct. 368 [1913]; Portions of Indian land necessary for a railroad right of way were, by the terms of the treaty, declared “public land,” implying that land beyond the right of way was private-- Kindred v. Union P.R. Co., 225 U.S. 582, 56 L. Ed. 1216, 32 S. Ct. 780 [1912]; see also 41 Am Jur 2d, Indians, Sec. 58 [1995 ed].

[179]Aboriginal Title to Indian Lands, supra, at Sec. 2[a], p. 433.

[180]42 C.J.S. Indians, Sec. 29 [1944 ed.]

[181]Ibid.

[182]North American Indians have made much progress in establishing a relationship with the national government and developing their own laws.  Some have their own government-recognized constitutions.  Usually the recognition of Indian tribes depends on whether the tribe has a reservation.  North American tribes have reached such an advanced stage that the main issues today evolve around complex jurisdictional and litigation matters.  Tribes have acquired the status of sovereign nations within another nation, possessing the right to change and grow-- Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective, Texas International Law Journal, vol. 32: 97, 104 [1997].

[183]Lynch, Native Title, supra, at 293.

[184]Dante Gatmaytan, Ancestral Domain Recognition in the Philippines:  Trends in Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 43, 40 [Aug. 1992]; see also Tee Hit Ton Indians v. U.S., supra, at 320.

[185]Ibid.

[186]D. Gatmaytan, supra, citing Churchill, The Earth is Our Mother:  Struggles for American Indian Land and Liberation in the Contemporary United States, The State of Native America: Genocide, Colonization and Resistance 139 (M. Jaimes 1992); and Indian Law Resource Center, United States Denial of Indian Property Rights:  A Study in Lawless Power and Racial Discrimination, Rethinking Indian Law 15 (National Lawyers Guild, Committee on Native American Struggles 1982).

[187]Id., Note 28, stating that some earlier decisions of the U.S. Supreme Court have held that Congress is subject to the strictures of the Constitution in dealing with Indians.  When an Indian property is taken for non-Indian use, the U.S. government is liable for payment of compensation, and an uncompensated taking may be enjoined.  F. Cohen, Handbook of Federal Indian Law 217 [1982], citing Shoshone Tribe v. U.S.  299 U.S. 476 [1937]; Choate v. Trapp, 224 U.S. 665 [1912]; and Lane v. Pueblo of Santa Rosa, 249 U.S. 110 [1919].

[188]See Discussion, infra, Part IV (c) (2).

[189]Susi v. Razon, 48 Phil. 424 [1925]; Herico v. Dar, 95 SCRA 437 [1980].

[190]Ibid.

[191]Director of Lands v. Intermediate Appellate Court, 146 SCRA 509 [1986]; Director of Lands v. Buyco, 216 SCRA 78 [1992]; Republic v. Court of Appeals and Lapina, 235 SCRA 567 [1994].

[192]75 Phil. 890 [1946].

[193]Id. at 892.

[194]Sec. 48 [b], C.A. 141.

[195]Sec. 48 [c], C.A. 141, as amended.  This provision was added in 1964 by R.A. 3872.

[196]Section 12, IPRA.

[197]“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 owner, and utilized a defined territory devolved to them, by operation of customary law or inherited from their ancestors, in accordance with their customs and traditions.”  (Sec. 3 [p], IPRA).

[198]Section 2, C.A. 141.

[199]Section 8, C.A. 141.

[200] The classification of ancestral lands 18% in slope or over as alienable in the IPRA is an exception to Section 15, P.D. 705, the Revised Forestry Code.

[201] Charles MacDonald, Indigenous Peoples of the Philippines:  Between Segregation and Integration, Indigenous Peoples of Asia, supra, at pp. 345, 350.

[202] Section 5, Article XII, 1987 Constitution.

[203] Words in bold were amendments introduced by R.A. 3872 in 1964.

[204] Words in bold were amendments introduced by R.A. 3872 on June 18, 1964.  On January 25, 1977, however, Sec. 48 [b] and 48 [c] were further amended by P.D. 1073 stating that these provisions on cultural minorities apply only to alienable and disposable lands of the public domain-- Please see Republic v. CA and Paran, 201 SCRA 1, 10-11 [1991].

[205] Jus utendi, jus fruendi.

[206] Jus abutendi.

[207] Jus disponendi.

[208] Jus vindicandi.  Please see Tolentino, Civil Code, vol. II, pp. 45-46 [1992]; see also Tolentino, vol. I, pp. 12-14.

[209] Sec. 55, IPRA provides:

             “Sec. 55. Communal rights.--  Subject to Section 56 hereof, areas within the ancestral domains, whether delineated or not, shall be presumed to be communally held:  provided, That communal rights under this Act shall not be construed as co-ownership as provided in Republic Act No. 386, otherwise known as the New Civil Code.”

[210] Ibid.

[211] Article 494, Civil Code.

[212] Antonio M. La Vina, Arguments for Communal Title, Part II, 2 Phil. Nat. Res. L. J. 23 [Dec. 1989].

[213] Section 11, Corporation Code.

[214] Sections 60-72, Corporation Code.

[215] Section 117, Corporation Code.  Please see also La Vina, Arguments for Communal Title, Part II, supra, at 23.

[216] Section 5, par. 2, Article XII, 1987 Constitution.

[217] Customary law is recognized by the Local Government Code of 1991 in solving disputes among members of the indigenous communities, viz:

             “Sec. 412 (c)  Conciliation among members of indigenous cultural communities.--  The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities.”

[218] Law writes custom into contract-Hongkong & Shanghai Bank v. Peters, 16 Phil. 284 [1910].

The Civil Code provides:

             “Art. 11.  Customs which are contrary to law, public order or public policy shall not be countenanced.”

             “Art. 12.  A custom must be proved as a fact, according to the rules of evidence.”

[219] Article 78 on marriages between Mohammedans or pagans who live in the 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 the usufructuary of woodland; Art. 657 on easement of right of way for passage of livestock; Arts. 678, 1315, 1376, 1522, 1564 and 1577.  Please see Aquino, Civil Code, vol. 1, p. 25.

[220] Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In Re: Firm Name of Ozaeta Romulo, 92 SCRA 1 [1979]; Yao Kee v. Sy-Gonzales, 167 SCRA 736 [1988]; Please see Aquino, Civil Code, vol. 1, p. 26 for a list of other cases.

[221] This situation is analogous to the Muslim code or the Code of Muslim Personal Laws (P.D. 1083) which took effect on February 4, 1977 despite the effectivity of the Civil Code and the Family Code.  P.D. 1083 governs persons, family relations and succession among Muslims, the adjudication and settlement of disputes, the organization of the Shari’a courts, etc.

[222] Mariflor P. Pagusara, The Kalinga Ili:  Cultural-Ecological Reflections on Indigenous Theora and Praxis of Man-Nature Relationship, Dakami Ya Nan Dagami, p. 36, Papers and Proceedings of the 1st Cordillera Muti-Sectoral Land Congress, 11-14 March 1983, Cordillera Consultative Committee [1984].

[223] Section 2, Article XII.

[224] A “co-production agreement” is defined as one wherein the government provides input to the mining operation other than the mineral resource-- Section 26 (b), R.A. 7942, the Philippine Mining Act of 1995.

[225] A "joint venture agreement" is one where a joint-venture company is 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 (c), R.A. 7942.

[226] A mineral "production-sharing agreement" is one where the government grants to the contractor the exclusive right to conduct mining operations within a contract area and shares in the gross output. The contractor provides the financing, technology, management and personnel necessary for the implementation of the agreement-- Section 26 (a), R.A. 7942.

[227] Section 26, R.A. 7942.

[228] Section 3 [d], People's Small-Scale Mining Act of 1991 (R.A. 7076) provides:

             "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 mining contractor for the small-scale utilization of a plot of mineral land."

[229] Section 3 [b], R.A. 7076.

[230] NCIP Administrative Order No. 1, Series of 1998.

[231] In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988], Cruz, J., ponente, it was declared that if a person is the owner of a piece of agricultural land on which minerals are discovered, his ownership of such land does not give him the right to extract or utilize the said minerals without the 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].

[232] See Ground I, Grounds  to Issue Writ of Prohibition, Petition, p. 14.

[233] Section 7 (b) is subject to Section 56 of the same law which provides:

             "Sec. 56. Existing Property Rights Regimes.-- Property rights within the ancestral domains already existing and/or vested upon effectivity of this Act, shall be recognized and respected."

             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 and Malaya on Nov. 7, 1997.

[234] Section 9 of the IPRA also gives the ICCs/IPs the ff. responsibilities over their ancestral domains:

             (a) Maintain Ecological Balance-- To preserve, restore, and maintain a balanced ecology in the ancestral domain by protecting the flora and fauna, watershed areas, and other reserves;

             (b) Restore Denuded Areas.-- To actively initiate, undertake and participate in the reforestation of denuded areas and other development programs and projects subject to just and reasonable renumeration;

             (c) Observe Laws.-- To observe and comply with the provisions of this Act and the rules and regulations for its effective implementation."

Section 58 of the same law also mandates that ancestral domains or portions thereof, which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined by appropriate agencies with the full participation of the ICCs/IPs concerned shall be maintained, managed and developed for such purposes.  The 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.

[235] Hector S. de Leon, Textbook on the New Philippine Constitution pp. 473-474 [1987] citing the 1986 UP Law Constitution Project, The National Economy and Patrimony, p. 11.

[236] Under the Small-Scale Mining Act of 1991, "small-scale mining" refers to "mining activities which rely heavily on manual labor using simple implements and methods and do not use explosives or heavy mining equipment"-- Section 3 [b],  R.A. 7076.

[237] See infra.,  pp. 77-79?.

[238] Andrew Gray, The Indigenous Movement in Asia, Indigenous Peoples of Asia, ed. By Barnes, Gray and Kingsbury, pub. By Ass'n. for Asian Studies, at 35, 42 [1995].

[239] E.g. International Indian Treaty Council, World Council of IPs.

[240] Gray, The Indigenous Movement in Asia, supra, at 44, citing the International Work Group for Indigenous Affairs, 1988.

[241] Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective, 32 Texas International Law Journal 97, 102 [1997].

[242] Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy, The American Journal of International Law, vol. 92: 414, 429 [1998].

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

[246] Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second Reading, November 20, 1996, p. 20.

[247] Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the International Labor Organization, and the ILO-Bilance- Asia Dep't, p. 3 [1999].

[248] Also referred to as the "Indigenous and Tribal Peoples Convention, 1989."

[249] See Introduction to ILO Convention No. 169, par. 4.

[250] Id., pars. 5 and 6.

[251] Perfecto V. Fernandez, Towards a Definition of National Policy on Recognition of Ethnic Law within the Philippine Legal Order, 55 P.L.J. 383, 385 [1980].

[252] Samuel K. Tan, A History of the Philippines, Manila Studies Association, Inc. and the Phil. National Historical Society, Inc., p. 6 [1997].

[253] Fernandez, supra, at 385, 391.