ipra case full txt

7/25/2019 IPRA Case FULL TXT

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EN BANC

[ G.R. No. 135385, December 06, 2000 ]

ISAGANI CRUZ AND CESAR EUROA, E!I!IONERS, "S.SECRE!AR# O$ EN"IRON%EN! AND NA!URA& RESOURCES,

SECRE!AR# O$ BUDGE! AND %ANAGE%EN! AND C'AIR%ANAND CO%%ISSIONERS O$ !'E NA!IONA& CO%%ISSION ON

INDIGENOUS EO&ES, RESONDEN!S.

'ON. (UAN % .$&A"IER, 'ON. ONCIANO BENNAGEN,BA#ANI ASCARRAGA, ED!A%I %ANSA#ANGAN, BASI&IO

)ANDAG, E"EN DUNUAN, #AO% !UGAS, A&$RE%OCARIANO, &IBERA!O A. GABIN, %A!ERNIDAD %. CO&AS,

NARCISA %. DA&UINES, BAI *IRA%+CONNIE SA!URNO, BAE%&O%O+BEA!RIZ !. ABASA&A, DA!U BA&I!UNG!UNG+

AN!ONIO D. &U%ANDONG, DA!U %AN!U%U*A) !EO$IS!OSABASA&ES, DA!U EDUAARDO BANDA, DA!U (OE& UNAD,

DA!U RA%ON BA#AAN, !I%UA# (OSE ANO#, !I%UA#%ACARIO D. SA&ACAO, !I%UA# ED)IN B. ENDING, DA!USA'A%ONG %A&ANA) "I, DA!U BEN ENDAO CABIGON,BAI NANANA#+&IZA SA)A#, BA# INA# DA#A+%E&INDA S.

RE#%UNDO, BAI !INANG'AGA 'E&INI!A !. ANGAN, DA!U%A*AU*A) ADO&INO &. SA)A#, DA!U %AUDA#A)+CRISEN SA)A#, "IC*# %A*A#, &OURDES D. A%OS,

GI&BER! . 'OGGANG, !ERESA GASAR, %ANUE& S. ONA&AN,%IA GRACE &. GIRON, ROSE%ARIE G. E, BENI!O CARINO,

(OSE' (UDE CARAN!ES, NE!!E CARAN!ES+"I"A&,&ANG&E# SEGUNDO, SA!UR S. BUGNA#, CAR&ING DO%U&O!,

ANDRES %ENDIOGRIN, &EOO&DO ABUGAN, "IRGI&IOCA#E!ANO, CONC'I!A G. DESCAGA, &E"# ES!E"ES, ODE!!E

G. ES!E"EZ, RODO&$O C. AGUI&AR, %AURO "A&ONES, EE'. A!ONG, O$E&IA !. DA"I, ER$EC!O B. GUINOSAO,

)A&!ER N. !I%O&, %ANUE& !. SE&EN, OSCAR DA&UN'A#,RICO O. SU&A!AN, RA$$# %A&INDA, A&$REDO ABI&&ANOS,

(ESSIE ANDI&AB, %IR&ANDO '. %ANG*U&IN!AS, SA%IESA!URNO, RO%EO A. &INDA'A#, ROE& S. %ANSANG+CAGAN,AUI!O S. &IESES, $I&IE G. SA)A#, 'ER%INIA S. SA)A#,


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(U&IUS S. SA)A#, &EONARDA SA)A#, (I%%# UG#UB,SA&"ADOR !IONGSON, "ENANCIO AANG, %ADION %A&ID,SU*I% %A&ID, NENENG %A&ID, %ANG*A!ADONG AUGUS!O

DIANO, (OSE'INE %. A&BESO, %ORENO %A&ID, %ARIO

%ANGCA&, $E&A# DIA%I&ING, SA&O%E . SARZA, $E&IE .BAGON, SA%%# SA&NUNGAN, AN!ONIO D. E%BA, NOR%A%AANSAGONOS, RO%EO SA&IGA, SR., (ERSON . GERADA,RENA!O !. BAGON, (R., SARING %ASA&ONG, SO&EDAD %.

GERARDA, E&IZABE!' &. %ENDI, %ORAN!E S. !I)AN,DANI&O %. %A&UDAO, %INORS %ARICE& %A&ID,RERESEN!ED B# 'ER $A!'ER CORNE&IO %A&ID,

%ARCE&INO %. &ADRA, RERESEN!ED B# 'ER $A!'ER%ONICO D. &ADRA, (ENN#N %A&ID, RERESEN!ED B# 'ER

$A!'ER !ON# %A&ID, ARIE& %. E"ANGE&IS!A,

RERESEN!ED B# 'ER %O!'ER &INA# BA&BUENA, ED)ARD%. E%U#, SR., SUSAN BO&ANIO, OND, U&A BA!O B-&AAN

!RIBA& $AR%ER-S ASSOCIA!ION, IN!ER+EO&E-SEC'ANGE, INC. AND GREEN $ORU%+)ES!ERN "ISA#AS,

IN!ER"ENORS.

CO%%ISSION ON 'U%AN RIG'!S, IN!ER"ENOR.

I*A&A'AN INDIGENOUS EO&E AND 'ARIBON

$OUNDA!ION $OR !'E CONSER"A!ION O$ NA!URA&RESOURCES, INC., IN!ER"ENOR.

RESO&U!ION

ER CURIA%/

Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition andmandamus as citizens and taxpayers, assailing the constitutionality of certain

provisions of Republic Act No !"#$ %RA !"#$&, other'ise (no'n as theIndigenous Peoples Rights Act of $))# %IPRA&, and its Implementing Rules andRegulations %Implementing Rules&

In its resolution of *eptember +), $))!, the Court reuired respondents tocomment-$.In compliance, respondents Chairperson and Commissioners of theNational Commission on Indigenous Peoples %NCIP&, the government agency


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created under the IPRA to implement its provisions, filed on /ctober $", $))! theirComment to the Petition, in 'hich they defend the constitutionality of the IPRA andpray that the petition be dismissed for lac( of merit

/n /ctober $), $))!, respondents *ecretary of the 0epartment of Environment

and Natural Resources %0ENR& and *ecretary of the 0epartment of 1udget and2anagement %012& filed through the *olicitor 3eneral a consolidated Comment4he *olicitor 3eneral is of the vie' that the IPRA is partly unconstitutional on theground that it grants o'nership over natural resources to indigenous peoples andprays that the petition be granted in part

/n November $5, $))!, a group of intervenors, composed of *en 6uan 7lavier, oneof the authors of the IPRA, 2r Ponciano 1ennagen, a member of the $)!8Constitutional Commission, and the leaders and members of $$+ groups ofindigenous peoples %7lavier, et al&, filed their 2otion for 9eave to Intervene 4hey

:oin the NCIP in defending the constitutionality of IPRA and praying for thedismissal of the petition

/n 2arch ++, $))), the Commission on ;uman Rights %C;R& li(e'ise filed a 2otionto Intervene and


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natural resources therein, in violation of the regalian doctrine embodied in *ection+, Article ?II of the Constitution@

%$& *ection "%a& 'hich defines the extent and coverage of ancestral domains,and *ection "%b& 'hich, in turn, defines ancestral landsB

%+& *ection , in relation to section "%a&, 'hich provides that ancestral domainsincluding inalienable public lands, bodies of 'ater, mineral and otherresources found 'ithin ancestral domains are private but communityproperty of the indigenous peoplesB

%"& *ection 8 in relation to section "%a& and "%b& 'hich defines the compositionof ancestral domains and ancestral landsB

%D& *ection # 'hich recognizes and enumerates the rights of the indigenouspeoples over the ancestral domainsB

%& *ection ! 'hich recognizes and enumerates the rights of the indigenouspeoples over the ancestral landsB

%8& *ection # 'hich provides for priority rights of the indigenous peoples inthe harvesting, extraction, development or exploration of minerals andother natural resources 'ithin the areas claimed to be their ancestraldomains, and the right to enter into agreements 'ith nonindigenouspeoples for the development and utilization of natural resources therein fora period not exceeding + years, rene'able for not more than + yearsBand

%#& *ection ! 'hich gives the indigenous peoples the responsibility tomaintain, develop, protect and conserve the ancestral domains andportions thereof 'hich are found to be necessary for critical 'atersheds,mangroves, 'ildlife sanctuaries, 'ilderness, protected areas, forest coveror reforestation-+.

Petitioners also content that, by providing for an all=encompassing definition ofancestral domains and ancestral lands 'hich might even include private landsfound 'ithin said areas, *ections "%a& and "%b& violate the rights of private


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lando'ners-".

In addition, petitioners uestion the provisions of the IPRA defining the po'ers and:urisdiction of the NCIP and ma(ing customary la' applicable to the settlement ofdisputes involving ancestral domains and ancestral lands on the ground that these

provisions violate the due process clause of the Constitution -D. 4hese provisionsare@

%$& *ections $ to " and ) 'hich detail the process of delineation andrecognition of ancestral domains and 'hich vest on the NCIP the soleauthority to delineate ancestral domains and ancestral landsB

%+& *ection +-i. 'hich provides that upon certification by the NCIP that aparticular area is an ancestral domain and upon notification to the follo'ing

officials, namely, the *ecretary of Environment and Natural Resources,*ecretary of Interior and 9ocal 3overnments, *ecretary of 6ustice andCommissioner of the National 0evelopment Corporation, the :urisdiction ofsaid officials over said area terminatesB

%"& *ection 8" 'hich provides the customary la', traditions and practices ofindigenous peoples shall be applied first 'ith respect to property rights,claims of o'nership, hereditary succession and settlement of land disputes,and that any doubt or ambiguity in the interpretation thereof shall be

resolved in favor of the indigenous peoplesB

%D& *ection 8 'hich states that customary la's and practices shall be used toresolve disputes involving indigenous peoplesB and

%& *ection 88 'hich vests on the NCIP the :urisdiction over all claims anddisputes involving rights of the indigenous peoples-.

7inally, petitioners assail the validity of Rule II, Part II, *ection $ of the NCIPAdministrative /rder No $, series of $))!, 'hich provides that the administrativerelationship of the NCIP to the /ffice of the President is characterized as a lateralbut autonomous relationship for purposes of policy and program coordination4hey contend that said Rule infringes upon the President>s po'er of control overexecutive departments under *ection $#, Article II of the Constitution-8.

Petitioners pray for the follo'ing@


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%$& A declaration that *ections ", , 8, #, !, +-I., #, !, ), 8", 8 and 88and other related provisions of RA !"#$ are unconstitutional and invalidB

%+& 4he issuance of a 'rit of prohibition directing the Chairperson and

Commissioners of the NCIP to cease and desist from implementing theassailed provisions of RA !"#$ and its Implementing RulesB

%"& 4he issuance of a 'rit of prohibition directing the *ecretary of the0epartment of Environment and Natural Resources to cease and desistfrom implementing 0epartment of Environment and Natural ResourcesCircular No +, series of $))!B

%D& 4he issuance of a 'rit of prohibition directing the *ecretary of 1udget and2anagement to cease and desist from disbursing public funds for theimplementation of the assailed provisions of RA !"#$B and

%& 4he issuance of a 'rit of mandamus commanding the *ecretary ofEnvironment and Natural Resources to comply 'ith his duty of carrying outthe *tate>s constitutional mandate to control and supervise the exploration,development, utilization and conservation of Philippine naturalresources-#.

After due deliberation on the petition, the members of the Court voted as follo's@

*even %#& voted to dismiss the petition 6ustice Fapunan filed an opinion, 'hich theChief 6ustice and 6ustices 1ellosillo, Guisumbing, and *antiago :oin, sustaining thevalidity of the challenged provisions of RA !"#$ 6ustice Puno also filed a separateopinion sustaining all challenged provisions of the la' 'ith the exception of *ection$, Part II, Rule III of NCIP Administrative /rder No $, series of $))!, the Rules andRegulations Implementing the IPRA, and *ection # of the IPRA 'hich he contendsshould be interpreted as dealing 'ith the large=scale exploitation of natural

resources and should be read in con:unction 'ith *ection +, Article ?II of the $)!#Constitution /n the other hand, 6ustice 2endoza voted to dismiss the petitionsolely on the ground that it does not raise a :usticiable controversy and petitionersdo not have standing to uestion the constitutionality of RA !"#$

*even %#& other members of the Court voted to grant the petition 6usticePanganiban filed a separate opinion expressing the vie' that *ections " %a&%b&, ,8, # %a&%b&, !, and related provisions of RA !"#$ are unconstitutional ;e


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reserves :udgment on the constitutionality of *ections !, ), 8, and 88 of thela', 'hich he believes must a'ait the filing of specific cases by those 'hose rightsmay have been violated by the IPRA 6ustice itug also filed a separate opinionexpressing the vie' that *ections "%a&, #, and # of RA !"#$ are unconstitutional6ustices 2elo, Pardo, 1uena, 3onzaga=Reyes, and 0e 9eon :oin in the separate

opinions of 6ustices Panganiban and itug

As the votes 'ere eually divided %# to #& and the necessary ma:ority 'as notobtained, the case 'as redeliberated upon ;o'ever, after redeliberation, thevoting remained the same Accordingly, pursuant to Rule 8, *ection # of the Rulesof Civil Procedure, the petition is 0I*2I**E0

Attached hereto and made integral parts thereof are the separate opinions of6ustices Puno, itug, Fapunan, 2endoza, and Panganiban

*/ /R0ERE0

Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes,

Ynares-Saniago,and De !eon, Jr., JJ.,concurPuno, "iug, #a$unan, Mendozaand Panganiban JJ.,see separate opinion

-$.Rollo, p $$D

-+.Petition, Rollo, pp $8=+"

-".%d at +"=+

-D.*ection $, Article III of the Constitution states@ No person shall be deprived oflife, liberty or property 'ithout due process of la', nor shall any person be deniedthe eual protection of the la's

-.Rollo, pp +=+#

-8.%d at +#=+!

-#.4ranscript of *tenographic Notes of the hearing held on April $", $))), pp =8

SEARA!E OINION


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PHN/,J@

RECIS

A classic essay on the 4 o 7or4'as 'ritten in $!#D by 7riedrich Nietzscheentitled /n the Hses and 0isadvantages of ;istory for 9ife Expounding onNietzsche>s essay, 6udge Richard Posner-$.'rote@-+.

9a' is the most historically oriented, or if you li(e the most bac('ard=loo(ing, themost >past=dependent,> of the professions It venerates tradition, precedent,pedigree, ritual, custom, ancient practices, ancient texts, archaic terminology,maturity, 'isdom, 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 4hese ingrainedattitudes are obstacles to anyone 'ho 'ants to re=orient la' in a more pragmaticdirection 1ut, by the same to(en, r9:m9c;r7r 7or4.?

hen Congress enacted the I=


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II 4he Indigenous Peoples Rights Act %IPRA&

A Indigenous Peoples

$ Indigenous Peoples@ 4heir ;istory

+ 4heir Concept of 9and

III 4he IPRA is a Novel Piece of 9egislation

A 9egislative ;istory

I 4he Provisions of the IPRA 0o Not Contravene the Constitution

A Ancestral domains and ancestral lands are the private property ofindigenous peoples and do not constitute part of the land of thepublic domain

$ 4he right to ancestral domains and ancestral lands@ ho'acuired

+ 4he concept of native title

%a& CariJo v Insular 3overnment%b& Indian 4itle to land%c& hy the CariJo doctrine is uniue

" 4he option of securing a torrens title to the ancestral land

1 4he right of o'nership and possession by the ICCs


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C *ections # %a&, # %b& and # of the IPRA do not violate theRegalian 0octrine enshrined in *ection +, Article ?II of the $)!#Constitution

$ 4he rights of ICCs


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de !eyes de las %ndias, set the policy of the *panish Cro'n 'ith respect to thePhilippine Islands in the follo'ing manner@

e, having acuired full sovereignty over the Indies, and all lands, territories, andpossessions not heretofore ceded a'ay by our royal predecessors, or by us, or in

our name, still pertaining to the royal cro'n and patrimony, it is our 'ill that alllands 'hich are held 'ithout proper and true deeds of grant be restored to us asthey belong to us, in order that after reserving before all 'hat to us or to ourviceroys, audiencias, and governors may seem necessary for public suares, 'ays,pastures, and commons in those places 'hich are peopled, ta(ing intoconsideration not only their present condition, but also their future and theirprobable increase, and after distributing to the natives 'hat may be necessary fortillage and pasturage, confirming them in 'hat they no' have and giving themmore if necessary, all the rest of said lands may remain free and unencumbered forus to dispose of as 'e may 'ish

e therefore order and command that all viceroys and presidents of pretorial courtsdesignate at such time as shall to them seem most expedient, a suitable period'ithin 'hich all possessors of tracts, farms, plantations, and estates shall exhibit tothem and to the court officers appointed by them for this purpose, their title deedsthereto And those 'ho are in possession by virtue of proper deeds and receipts, orby virtue of :ust prescriptive right shall be protected, and all the rest shall berestored to us to be disposed of at our 'ill-D.

4he Philippines passed to *pain by virtue of discovery and conuest

Conseuently, all lands became the exclusive patrimony and dominion of the*panish Cro'n 4he *panish 3overnment too( charge of distributing the lands byissuing royal grants and concessions to *paniards, both military and civilian-.Private land titles could only be acuired from the government either by purchaseor by the various modes of land grant from the Cro'n-8.

4he 9a's of the Indies 'ere follo'ed by the Ley Hipotecaria, or e %or:9:e&9> o 183-#.4he *panish 2ortgage 9a' provided for the systematic registrationof titles and deeds as 'ell as possessory claims 4he la' sought to register and taxlands pursuant to the Royal 0ecree of $!!5 4he Royal 0ecree of $!)D, or the2aura 9a', 'as partly an amendment of the 2ortgage 9a' as 'ell as the 9a's ofthe Indies, as already amended by previous orders and decrees-!.4his 'as the last*panish land la' promulgated in the Philippines It reuired the ad:ustment orregistration of all agricultural lands, other'ise the lands shall revert to the state

7our years later, by the !re94 o 9r7 o December 10, 188, *pain ceded tothe government of the Hnited *tates all rights, interests and claims over thenational territory of the Philippine Islands In $)5", the Hnited *tates colonial


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government, through the Philippine Commission, passed Ac No. 26, e r7bc &9=< Ac.

B. "9e=o= @. %rc9=o

In $)5D, under the American regime, this Court decided the case of Valenton v.Murciano.-).

Valentonresolved the uestion of 'hich is the better basis for o'nership of land@long=time occupation or paper title Plaintiffs had entered into peaceful occupationof the sub:ect land in $!85 0efendant>s predecessor=in=interest, on the otherhand, purchased the land from the provincial treasurer of 4arlac in $!)+ 4he lo'ercourt ruled against the plaintiffs on the ground that they had lost all rights to theland by not ob:ecting to the administrative sale Plaintiffs appealed the :udgment,asserting that their "5=year adverse possession, as an extraordinary period of

prescription in the Partidasand the Civil Code, had given them title to the land asagainst everyone, including the *tateB and that the *tate, not o'ning the land,could not validly transmit it

4he Court, spea(ing through 6ustice illard, decided the case on the basis of thosespecial la's 'hich from earliest time have regulated the disposition of the publiclands in the colonies-$5.4he uestion posed by the Court 'as@ 0id these specialla's recognize any right of prescription as against the *tate as to these landsB andif so, to 'hat extent 'as it recognizedK

Prior to $!!5, the Court said, there 'ere no la's specifically providing for thedisposition of land in the Philippines ;o'ever, it 'as understood that in theabsence of any special la' to govern a specific colony, the 9a's of the Indies 'ouldbe follo'ed Indeed, in the Royal /rder of 6uly , $!8+, it 'as decreed that untilregulations on the sub:ect could be prepared, the authorities of the PhilippineIslands should follo' strictly the 9a's of the Indies, the Ordenanzaof the

Intendentesof $#!8, and the Royal Cedula of $#D-$$.

Guoting the preamble of 9a' $D, 4itle $+, 1oo( D of the Recopilacion de Leyesde las Indias, the court interpreted it as follo's@

In the preamble of this la' there is, as is seen, a distinct statement that all thoselands belong to the Cro'n 'hich have not been granted by Philip, or in his name, orby the (ings 'ho preceded him !7 79eme= ec


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produce before the authorities named, and 'ithin a time to be fixed by them, theirtitle papers And those 'ho had good title or sho'ed prescription 'ere to beprotected in their holdings It is apparent that it 'as not the intention of the la'that mere possession for a length of time should ma(e the possessors the o'nersof the land possessed by them 'ithout any action on the part of the authorities -$+.

4he preamble stated that all those lands 'hich had not been granted by Philip, or inhis name, or by the (ings 'ho preceded him, belonged to the Cro'n-$".7or thoselands granted by the (ing, the decree provided for a system of assignment of suchlands It also ordered that all possessors of agricultural land should exhibit theirtitle deed, other'ise, the land 'ould be restored to the Cro'n-$D.

4he Royal Cedula of /ctober $, $#D reinforced the Recopilacion'hen it orderedthe Cro'n>s principal subdelegate to issue a general order directing the publicationof the Cro'n>s instructions@

x x x to the end that any and all persons 'ho, since the year $#55, and up to thedate of the promulgation and publication of said order, shall have occupied royallands, 'hether or not x x x cultivated or tenanted, may x x x appear and exhibit tosaid subdelegates the titles and patents by virtue of 'hich said lands are occupiedx x x *aid subdelegates 'ill at the same time 'arn the parties interested that incase of their failure to present their title deeds 'ithin the term designated, 'ithouta :ust and valid reason therefor, they 'ill be deprived of and evicted from theirlands, and they 'ill be granted to others-$.

/n 6une +, $!!5, the Cro'n adopted regulations for the ad:ustment of lands'rongfully occupied by private individuals in the Philippine Islands Valentonconstrued these regulations together 'ith contemporaneous legislative andexecutive interpretations of the la', and concluded that plaintiffs> case fared nobetter under the $!!5 decree and other la's 'hich follo'ed it, than it did under theearlier ones 4hus as a general doctrine, the Court stated@

hile the *tate has al'ays recognized the right of the occupant to a deed if heproves a possession for a sufficient length of time, yet it 97 9>947 =77e< 9e m7 m9e 9 roo beore e roer 9


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secretary In effect, alenton upheld the *panish concept of state o'nership ofpublic land

As a fitting observation, the Court added that ?[]e oc4 r7e< b4 eS9=7 Go@er=me= rom e9re7 me7, rer=: 7eer7 o= e bc

9=


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principles and procedure of the 4orrens system of registration formulated by *irRobert 4orrens 'ho patterned it after the 2erchant *hipping Acts in *outhAustralia 4he 4orrens system reuires that the government issue an officialcertificate of title attesting to the fact that the person named is the o'ner of theproperty described therein, sub:ect to such liens and encumbrances as thereon

noted or the la' 'arrants or reserves-+8.4he certificate of title is indefeasible andimprescriptible and all claims to the parcel of land are uieted upon issuance of saidcertificate 4his system highly facilitates land conveyance and negotiation-+#.

D. !e =e Co=7o=7

4he Regalian doctrine 'as enshrined in the 135 Co=7o= /ne of the fixedand dominating ob:ectives of the $)" Constitutional Convention 'as thenationalization and conservation of the natural resources of the country-+!.!ere>97 9= o@er>em=: 7e=me= = e Co=@e=o= = 9@or o e r=ce

o 79e o>=er7 o =9r9 re7orce7 9=< e 9


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4he 13 Co=7o= reiterated the Regalian doctrine in *ection !, Article ?I onthe National Economy and the Patrimony of the Nation, to 'it@

Se0. 1 A 9=


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II. !'E INDIGENOUS EO&ES RIG'!S AC!.

Rebc Ac No. 831is entitled An Act to Recognize, Protect and Promote the

Rights of Indigenous Cultural Communities< Indigenous Peoples, Creating a NationalCommission on Indigenous Peoples, Establishing Implementing 2echanisms,Appropriating 7unds 4herefor, and for /ther Purposes I 7 7m4 =o>= 97?!e I=


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rest of the isayasB Northern and estern 2indanaoB *outhern and Eastern2indanaoB and Central 2indanao-"#.4he NCIP too( over the functions of the /fficefor Northern Cultural Communities and the /ffice for *outhern CulturalCommunities created by former President Corazon Auino 'hich 'ere mergedunder a revitalized structure-"!.

D7e7 =@o@=: ICC7HI7 9re o be re7o@e< =7 9=7 >ere eer c7om9r4 or >re=. C7om9r4 9>7 >ere 9=7 o e b9r9=:94. 4hey 'ere preserved in songs and chants and in thememory of the elder persons in the community-D.4he 'ritten la's 'ere those thatthe chieftain and his elders promulgated from time to time as the necessity arose-.4he oldest (no'n 'ritten body of la's 'as the 2aragtas Code by 0atu*uma('el at about $+5 A0 /ther old codes are the 2uslim Code of 9u'aran andthe Principal Code of *ulu-8.hether customary or 'ritten, the la's dealt 'ithvarious sub:ects, such as inheritance, divorce, usury, loans, partnership, crime andpunishment, property rights, family relations and adoption henever disputesarose, these 'ere decided peacefully through a court composed by the chieftain as

:udge and the barangay elders as :ury Conflicts arising bet'een sub:ects ofdifferent barangays 'ere resolved by arbitration in 'hich a board composed ofelders from neutral barangays acted as arbiters-#.

B9r9=:9=c 7oce4 9< 9


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community o'nership of the soil and the instruments of production as a member ofthe barangay-!.4his ancient communalism 'as practiced in accordance 'ith theconcept of mutual sharing of resources so that no individual, regardless of status,'as 'ithout sustenance O>=er7 o 9=< >97 =o=+e7e= or =mor9=9=< e r: o 7rc >97 >9 re:9e< e


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4he *panish missionaries 'ere ordered to establish$ueblos'here the church andconvent 'ould be constructed All the ne' Christian converts 'ere reuired toconstruct their houses around the church and the unbaptized 'ere invited to do thesame-#5.ith the redu00ion, the *paniards attempted to tame the reluctant7ilipinos through Christian indoctrination using the 0onveno50asa real5$laza

complex as focal point 4he redu00ion, to the *paniards, 'as a civilizing device toma(e the 7ilipinos la'=abiding citizens of the *panish Cro'n, and in the long run, toma(e them ultimately adopt ;ispanic culture and civilization-#$.

A 9=e 97 9 9=ere =o> = 9=97 rom

e realengas9 9=< :r9=7 >ere m9


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4he pro=Christian or pro=Indio attitude of colonialism brought about a generallymutual feeling of suspicion, fear, and hostility bet'een the Christians on the onehand and the non=Christians on the other Colonialism tended to divide and rule another'ise culturally and historically related populace through a colonial system thatexploited both the virtues and vices of the 7ilipinos -#).

re797mo


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I= 15,the Philippine Congress passed R.A. No. 1888,an Act to effectuate in amore rapid and complete manner the economic, social, moral and politicaladvancement of the non=Christian 7ilipinos or national cultural minorities and torender real, complete, and permanent the integration of all said national culturalminorities into the body politic, creating the Comm77o= o= N9o=9

I=e:r9o=charged 'ith said functions 4he la' called for a oc4 o=e:r9o=of indigenous peoples into the Philippine mainstream and for thispurpose created the Comm77o= o= N9o=9 I=e:r9o=%CNI&-!D.4he CNI 'asgiven, more or less, the same tas( as the 1NC4 during the American regime !eo7+=e


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A=ce7r9 &9=s, some$55,555 Falingas and 1onto(s of the Cordillera region 'ere displaced by the ChicoRiver dam pro:ect of the National Po'er Corporation %NPC& 4he 2anobos of1u(idnon sa' their land bulldozed by the 1u(idnon *ugar Industries Company%1H*C/& In Agusan del *ur, the National 0evelopment Company 'as authorizedby la' in $)#) to ta(e approximately D5,5 hectares of land that later became theN0C=3uthrie plantation in Agusan del *ur 2ost of the land 'as possessed by theAgusan natives-)".4imber concessions, 'ater pro:ects, plantations, mining, and

cattle ranching and other pro:ects of the national government led not only to theeviction of the indigenous peoples from their land but also to the reduction anddestruction of their natural environment-)D.

!e A=o :o@er=me= 7:=e< 9 o9 7 rom e oc4 o =e:r9o=

o o=e o re7er@9o=. Invo(ing her po'ers under the 7reedom Constitution,President Auino created theOce o %7m A9r7, Oce or Norer=Cr9 Comm=e7 9=< e Oce or Soer=Cr9 Comm=e7 9=94 o e.-)8.!7 Co=7o=

:oe7 rer 9= e 13 Co=7o= b4 ere774 :9r9=ee=: e

r:7 o rb9 $=o7 o er 9=ce7r9


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it difficult for estern concepts and religion to erode their customs and traditions4he infieles societies 'hich had become peripheral to colonial administration,represented, from a cultural perspective, a much older base of archipelagic culture4he political systems 'ere still structured on the patriarchal and (inship orientedarrangement of po'er and authority 4he economic activities 'ere governed by the

concepts of an ancient communalism and mutual help 4he social structure 'hichemphasized division of labor and distinction of functions, not status, 'asmaintained 4he cultural styles and forms of life portraying the varieties of socialcourtesies and ecological ad:ustments 'ere (ept constantly vibrant-)!.

&9=< 7 e ce=r9 eeme= o e = o= 9= 97 9 7ro=: reere=ce or comm=9o>=er7, 'hich could either be o'nership by a group of individuals or families'ho are related by blood or by marriage,-$5$.or o'nership by residents of the samelocality 'ho may not be related by blood or marriage 4he system of communal

o'nership under customary la's dra's its meaning from the subsistence andhighly collectivized mode of economic production 4he Falingas, for instance, 'hoare engaged in team occupation li(e hunting, foraging for forest products, ands'idden farming found it natural that forest areas, s'idden farms, orchards,pasture and burial grounds should be communally=o'ned-$5+.7or the Falingas,everybody has a common right to a common economic base 4hus, as a rule, rightsand obligations to the land are shared in common

Ao: :4 be= o= comm=9 o>=er7, c7om9r4 9> o= 9=< 97o

79=co=7 =


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ili-$5.

&9=< e7 97 o 9


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*enator 7lavier further declared@

4he IPs are the offsprings and heirs of the peoples 'ho have first inhabited andcared for the land long before any central government 'as established 4heir

ancestors had territories over 'hich they ruled themselves and related 'ith othertribes 4hese territories= the land= include people, their d'elling, the mountains,the 'ater, the air, plants, forest and the animals 4his is their environment in itstotality 4heir existence as indigenous peoples is manifested in their o'n livesthrough political, economic, socio=cultural and spiritual practices 4he IPs culture isthe living and irrefutable proof to this

4heir survival depends on securing or acuiring land rightsB asserting their rights toitB and depending on it /ther'ise, IPs shall cease to exist as distinct peoples-$$5.

4o recognize the rights of the indigenous peoples effectively, *enator 7lavierproposed a bill based on >o o79e7/%$& the concept of native titleB and %+&the principle ofparens patriae

According to *enator 7lavier, -'.hile our legal tradition subscribes to the Regalian0octrine reinstated in *ection +, Article ?II of the $)!# Constitution, ourdecisional la's and :urisprudence passed by the *tate have made exception tothe doctrine 4his exception 'as r7 9< =in the case of Cario v. Insularovernment'here@

x x x the court has recognized long occupancy of land by an indigenous member ofthe cultural communities as one of private o'nership, 'hich, in legal concept, istermed native title 4his ruling has not been overturned In fact, it 'as affirmedin subseuent cases-$$$.

7ollo'ing Cario, the *tate passed Act No )+8, Act No +!#D, CA No $D$, P0#5, P0 D$5, P0 $+), RA 8#"D %the /rganic Act for the Autonomous Region of2uslim 2indanao& 4hese la's, explicitly or implicitly, and liberally or restrictively,recognized native title or private right and the existence of ancestral lands anddomains 0espite the passage of these la's, ho'ever, *enator 7lavier continued@

x x x the executive department of government since the American occupation hasnot implemented the policy In fact, it 'as more honored in its breach than in itsobservance, its 'anton disregard sho'n during the period unto the Common'ealthand the early years of the Philippine Republic 'hen government organized andsupported massive resettlement of the people to the land of the ICCs

*enate 1ill No $#+! see(s to genuinely recognize the IPs right to o'n and possess


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their ancestral land 4he bill 'as prepared also under the principle ofparenspatriaeinherent in the supreme po'er of the *tate and deeply embedded inPhilippine legal tradition 4his principle mandates that persons suffering fromserious disadvantage or handicap, 'hich places them in a position of actualineuality in their relation or transaction 'ith others, are entitled to the protection

of the *tate

Se=9e B No. 128 >97 977e< o= !r< Re9e=4+o=e 21J

Se=9or7 @o=: = 9@or 9=< =o=e 9:9=7, > =o 9b7e=o=.-$$+.

'o7e B No. 125'as sponsored by Re. Z999,Chairman of the Committeeon Cultural Communities It 'as originally authored and subseuently presentedand defended on the floor by Re. Gre:oro A=


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A. A=ce7r9 Dom9=7 9=< A=ce7r9 &9=


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re7s& and Certificates of Ancestral 0omain Claims %CA0C>s& to IPs

4he identification and delineation of these ancestral domains and lands is a po'erconferred by the IPRA on the National Commission on Indigenous Peoples %NCIP&-$$).4he guiding principle in identification and delineation is self=delineation -$+5.4hismeans that the ICCs


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1J R: o A=ce7r9 Dom9=7 9=< A=ce7r9 &9=


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that this land had been possessed and occupied by his ancestors since timeimmemorialB that his grandfather built fences around the property for the holding ofcattle and that his father cultivated some parts of the land CariJo inherited theland in accordance 'ith Igorot custom ;e tried to have the land ad:usted underthe *panish land la's, but no document issued from the *panish Cro'n-$"$.In

$)5$, CariJo obtained a possessory title to the land under the *panish 2ortgage9a'-$"+.4he North American colonial government, ho'ever, ignored his possessorytitle and built a public road on the land prompting him to see( a 4orrens title to hisproperty in the land registration court hile his petition 'as pending, a H*military reservation-$"".'as proclaimed over his land and, shortly thereafter, amilitary detachment 'as detailed on the property 'ith orders to (eep cattle andtrespassers, including CariJo, off the land-$"D.

In $)5D, the land registration court granted CariJo>s application for absoluteo'nership to the land 1oth the 3overnment of the Philippine Islands and the H*

3overnment appealed to the C7I of 1enguet 'hich reversed the land registrationcourt and dismissed CariJo>s application 4he Philippine *upreme Court-$".affirmedthe C7I by applying the Valentonruling CariJo too( the case to the H**upreme Court-$"8./n one hand, the Philippine government invo(ed the Regaliandoctrine and contended that CariJo failed to comply 'ith the provisions of the Royal0ecree of 6une +, $!!5, 'hich reuired registration of land claims 'ithin a limitedperiod of time CariJo, on the other, asserted that he 'as the absolute o'ner ofthe land&ure genium, and that the land never formed part of the public domain

In a unanimous decision 'ritten by 6ustice /liver endell ;olmes, the H*

*upreme Court held@

It is true that *pain, in its earlier decrees, embodied the universal feudal theorythat all lands 'ere held from the Cro'n, and perhaps the general attitude ofconuering nations to'ard people not recognized as entitled to the treatmentaccorded to those in the same zone of civilization 'ith themselves It is true, also,that in legal theory, sovereignty is absolute, and that, as against foreign nations,the Hnited *tates may assert, as *pain asserted, absolute po'er 1ut it does notfollo' that, as against the inhabitants of the Philippines, the Hnited *tates assertsthat *pain had such po'er hen theory is left on one side, sovereignty is auestion of strength, and may vary in degree ;o' far a ne' sovereign shall insistupon the theoretical relation of the sub:ects to the head in the past, and ho' far itshall recognize actual facts, are matters for it to decide-$"#.

4he H* *upreme Court noted that it need not accept *panish doctrines 4hechoice 'as 'ith the ne' colonizer Hltimately, the matter had to be decided underH* la'


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4he Cariodecision largely rested on the North American constitutionalist>sconcept of due process as 'ell as the pronounced policy to do :ustice to thenatives-$"!.It 'as based on the strong mandate extended to the Islands via thePhilippine 1ill of $)5+ that No la' shall be enacted in said islands 'hich shalldeprive any person of life, liberty, or property 'ithout due process of la', or deny

to any person therein the eual protection of the la's 4he court declared@

4he acuisition of the Philippines 'as not li(e the settlement of the 'hite race inthe Hnited *tates hatever consideration may have been sho'n to the NorthAmerican Indians, the dominant purpose of the 'hites in America 'as to occupyland It is obvious that, ho'ever stated, the reason for our ta(ing over thePhilippines 'as different No one, 'e suppose, 'ould deny that, so far asconsistent 'ith paramount necessities, our first ob:ect in the internal administrationof the islands is to do :ustice to the natives, not to exploit their country for privategain 1y the /rganic Act of 6uly $, $)5+, chapter $"8), section $+ %"+ *tatutes at

9arge, 8)$&, all the property and rights acuired there by the Hnited *tates are tobe administered >for the benefit of the inhabitants thereof> It is reasonable tosuppose that the attitude thus assumed by the Hnited *tates 'ith regard to 'hat'as unuestionably its o'n is also its attitude in deciding 'hat it 'ill claim for itso'n 4he same statute made a bill of rights, embodying the safeguards of theConstitution, and, li(e the Constitution, extends those safeguards to all It providesthat >no la' shall be enacted in said islands 'hich shall deprive any person of life,liberty, or property 'ithout due process of la', or deny to any person therein theeual protection of the la's> In the light of the declaration that 'e have uotedfrom section $+, it is hard to believe that the Hnited *tates 'as ready to declare in

the next breath that any person did not embrace the inhabitants of 1enguet, orthat it meant by property only that 'hich had become such by ceremonies of'hich presumably a large part of the inhabitants never had heard, and that itproposed to treat as public land 'hat they, by native custom and by longassociation,== of the profoundest factors in human thought,== regarded as theiro'n-$").

4he Court 'ent further@

-E.very presumption is and ought to be against the government in a case li(e thepresent I m:, er97, be roer 9=< 7ce= o 794 9 >e=, 97 9r

b9c 97 e7mo=4 or memor4 :oe7, e 9=< 97 bee= e< b4 =94 rom beore e S9=7 co=e7, 9=< =e@er o 9@e bee=

bc 9=


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testimony or memory 'ent, and %+& under a claim of private o'nership 9and heldby this title is presumed to never have been public land

Against this presumption, the H* *upreme Court analyzed the *panish decreesupheld in the $)5D decision ofValenton v. Murciano 4he H* *upreme Court

found =oproof that the *panish decrees did =o honor native title /n thecontrary, the decrees discussed in Valentonappeared to recognize that the nativeso'ned some land, irrespective of any royal grant 4he Regalian doctrine declared inthe preamble of the Re0o$ila0ion'as all theory and discourse and it 'asobserved that titles 'ere admitted to exist beyond the po'ers of the Cro'n, viz@

?I e 9c9=-7 c97e 7 o be re< b4 e 9> o S9=, >e 97 o 7974 7 9

e = e 9=, e o==: 7ome 9=


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e.-$D+.4his title 'as sufficient, even 'ithout government administrative action,and entitled the holder to a 4orrens certificate 6ustice ;olmes explained@

It 'ill be perceived that the rights of the applicant under the *panish la' present aproblem not 'ithout difficulties for courts of a legal tradition e have deemed it

proper on that account to notice the possible effect of the change of sovereigntyand the act of Congress establishing the fundamental principles no' to beobserved Hpon a consideration of the 'hole case 'e are of the opinion that la'and :ustice reuire that the applicant should be granted 'hat he see(s, and shouldnot be deprived of 'hat, by the practice and belief of those among 'hom he lived,'as his property, through a refined interpretation of an almost forgotten la' of*pain-$D".

!7, e cor re< = 9@or o C9rLo 9=< or97 =9be< b4 9 rbe 9 e Socor+

Ge=er9, = 7 9r:me=, c9r9cere< 97 9 79@9:e rbe 9 =e@er >97

bro: ==. I

7eem7 rob9be, =o cer9=, 9 e S9=7 oc97 >o< =o 9@e

:r9=e< o 9=4o=e = 9 ro@=ce e re:7r9o= o >c ormer4 e

9= >97 e=e< b4 e S9=7 &9>7, 9=< >c >o< 9@e m9s title as discussed and upheld by the H* *upreme Court in said case


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bJ I=


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have been made to remain on the reservation for their o'n good and for thegeneral good of the country If any lesson can be dra'n from the Indian policy ofthe Hnited *tates, it is that the determination of this policy is for the legislative andexecutive branches of the government and that 'hen once so decided upon, thecourts should not interfere to upset a carefully planned governmental system

Perhaps, :ust as many forceful reasons exist for the segregation of the 2anguianesin 2indoro as existed for the segregation of the different Indian tribes in the Hnited*tates-$".

Ru'iapplied the concept of Indian land grants or reservations in the PhilippinesAn Indian reservation is a part of the public domain set apart by proper authorityfor the use and occupation of a tribe or tribes of Indians-$D.It may be set apart byan act of Congress, by treaty, or by executive order, but it cannot be established bycustom and prescription-$.

I=


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gave to the nation ma(ing the discovery the sole right of acuiring the soil from thenatives and establishing settlements upon it As regards the natives, the courtfurther stated that@

4hose relations 'hich 'ere to exist bet'een the discoverer and the natives 'ere

to be regulated by themselves 4he rights thus acuired being exclusive, no otherpo'er could interpose bet'een them

In the establishment of these relations, the rights of the original =9b9=7'ere,in no instance, entirely disregardedB but 'ere necessarily, to a considerable extent,impaired !e4 >ere 99 e:9 97 >e 97 ;7 c9m o re9= o77e77o= o , 9=< o 7e 9ccor=


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ee= 7 r: o

o77e77o=, 9=< o e ec7@e o>er o 9cr=: 9 r:.?-$8+.

It has been said that the history of America, from its discovery to the present day,proves the universal recognition of this principle-$8".

4heo+nsondoctrine 'as a compromise It protected Indian rights and theirnative lands 'ithout having to invalidate conveyances made by the government tomany H* citizens-$8D.

o+nson'as reiterated in the case of 3orcester v. eorgia-$8.In this case, the*tate of 3eorgia enacted a la' reuiring all 'hite persons residing 'ithin theChero(ee nation to obtain a license or permit from the 3overnor of 3eorgiaB andany violation of the la' 'as deemed a high misdemeanor 4he plaintiffs, 'ho 'ere'hite missionaries, did not obtain said license and 'ere thus charged 'ith a

violation of the Act

4he H* *upreme Court declared the Act as unconstitutional for interfering 'ith thetreaties established bet'een the Hnited *tates and the Chero(ee nation as 'ell asthe Acts of Congress regulating intercourse 'ith them It characterized therelationship bet'een the Hnited *tates government and the Indians as@

4he Indian nations 'ere, from their situation, necessarily dependent on someforeign potentate for the supply of their essential 'ants, and for their protectionfrom la'less and in:urious intrusions into their country 4hat po'er 'as naturally

termed their protector 4hey had been arranged under the protection of 3reat1ritainB but the extinguishment of the 1ritish po'er in their neighborhood, and theestablishment of that of the Hnited *tates in its place, led naturally to thedeclaration, on the part of the Chero(ees, that they 'ere under the protection ofthe Hnited *tates, and of no other po'er 4hey assumed the relation 'ith theHnited *tates 'hich had before subsisted 'ith 3reat 1ritain

4his relation 'as that of a nation claiming and receiving the protection of one morepo'erful, not that of individuals abandoning their national character, and submittingas sub:ects to the la's of a master-$88.

It 'as the policy of the H* government to treat the Indians as nations 'ithdistinct territorial boundaries and recognize their right of occupancy over all thelands 'ithin their domains 4hus@

7rom the commencement of our government Congress has passed acts to regulatetrade and intercourse 'ith the IndiansB 'hich treat them as nations, respect theirrights, and manifest a firm purpose to afford that protection 'hich treaties


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stipulate All these acts, and especially that of $!5+, 'hich is still in force,manifestly consider e 7e@er9 I=e


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Indian title, 'hich it accorded the protection of complete o'nership-$#$.1ut thisaboriginal Indian interest simply constitutes permission from the 'hites to occupythe land, and means mere possession not specifically recognized as o'nership byCongress-$#+.It is clear that this right of occupancy based upon aboriginalpossession is not a property right-$#".It is vulnerable to affirmative action by the

federal government 'ho, as sovereign, possessed exclusive po'er to extinguish theright of occupancy at 'ill-$#D.!7, 9bor:=9 e 7 =o e 79me 97 e:9e.Aboriginal title rests on actual, exclusive and continuous use and occupancyfor a long time-$#.It entails that land o'ned by Indian title must be used 'ithinthe tribe, sub:ect to its la's and customs, and cannot be sold to another sovereigngovernment nor to any citizen-$#8.*uch title as Indians have to possess and occupyland is in the tribe, and not in the individual IndianB the right of individual Indiansto share in the tribal property usually depends upon tribal membership, theproperty of the tribe generally being held in communal o'nership-$##.

As a rule, Indian lands are not included in the term public lands, 'hich isordinarily used to designate such lands as are sub:ect to sale or other disposalunder general la's-$#!.Indian land 'hich has been abandoned is deemed to fallinto the public domain-$#)./n the other hand, an Indian reservation is a part of thepublic domain set apart for the use and occupation of a tribe of Indians-$!5./nceset apart by proper authority, the reservation ceases to be public land, and until theIndian title is extinguished, no one but Congress can initiate any preferential righton, or restrict the nation>s po'er to dispose of, them-$!$.

!e Amerc9= ; e

9=ce7r9 9=< c9m7 o =


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American 6urisprudence on aboriginal title 'ill depend on the peculiar facts of eachcase

cJ )4 e C9rLo


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4he private character of ancestral lands and domains as laid do'n in the IPRA isfurther 7re=:e=e


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4he classification of ancestral land as public agricultural land is in compliance 'iththe reuirements of the Public 9and Act and the 9and Registration Act CA $D$,the Public 9and Act, deals specifically 'ith lands of the public domain-$)!.Itsprovisions apply to those lands declared open to disposition or concession x x x'hich have not been reserved for public or uasi=public purposes, nor appropriated

by the 3overnment, nor in any manner become private property, nor those on'hich a private right authorized and recognized by this Act or any other valid la' xx x or 'hich having been reserved or appropriated, have ceased to be so -$)).ActD)8, the 9and Registration Act, allo's registration only of private lands and publicagricultural lands S=ce 9=ce7r9


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Registration under the Public 9and Act and 9and Registration Act recognizes theconcept of o'nership under the c@ 9> 4his o'nership is based on adversepossession for a specified period, and har(ens to *ection DD of the Public 9and Acton administrative legalization %free patent& of imperfect or incomplete titles and

*ection D! %b& and %c& of the same Act on the :udicial confirmation of imperfect orincomplete titles 4hus@

Se0. )) Any natural=born citizen of the Philippines 'ho is not the o'ner of morethan t'enty=four hectares and 'ho since 6uly fourth, $)+8 or prior thereto, hascontinuously occupied and cultivated, either by himself or through his predecessors=in=interest, a tract or tracts of agricultural public lands sub:ect to disposition, or'ho shall have paid the real estate tax thereon 'hile the same has not beenoccupied by any person shall be entitled, under the provisions of this chapter, tohave a free patent issued to him for such tract or tracts of such land not to exceed

t'enty=four hectares

A member o e =9o=9 cr9 m=ore7 >o 97 co==o74

occe< 9=< c@9e


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title under the provisions of this Chapter

cJ %ember7 o e =9o=9 cr9 m=ore7 >o b4 em7e@e7 or

ro: er re


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applicable-+$).In other 'ords, in the absence of any applicable provision in the CivilCode, custom, 'hen duly proven, can define rights and liabilities-++5.

C7om9r4 9>is a rm9r4, not secondary, source of rights under the IPRA anduniuely applies to ICCss bro' 4his is fidelity of usufructuary relation to the land== thepossession of ste'ardship through perduring, intimate tillage, and the mutuality ofblessings bet'een man and landB from man, care for landB from the land,

sustenance for man

-+++.

C. Seco=7 9J, bJ 9=< 5 o e IRA Do No "o9e e Re:99=

Docr=e E=7r=e< = Seco= 2, Arce II o e 18 Co=7o=.

1. !e R:7 o ICC7HI7 O@er !er A=ce7r9 Dom9=7 9=< &9==er7 o@er 9=


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b> Rig o Develo$ !ands and /aural Resour0es== Sb;ec o Seco= 56ereo, e r: o Rig o Regulae e Anry o Migrans.== Right to regulate the entry of migrantsettlers and organizations into their domainsB

> Rig o Sae and Clean 9ir and aer==7or this purpose, the ICCs


52/168

Se0. 1. Rigs o 9n0esral !ands== 4he right of o'nership and possession of theICCs Rig o ranser land5$ro$ery== *uch right shall include the right to transfer

land or property rights to


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e S9e. ith the exception of agricultural lands, all other natural resourcesshall not be alienated !e eor9o=,


54/168

" Congress may, by la', allo' small=scale utilization of natural resourcesby 7ilipino citizensB

D 7or the large=scale exploration, development and utilization of minerals,petroleum and other mineral oils, the President may enter into

agreements 'ith foreign=o'ned corporations involving technical orfinancial assistance

A7 o>=er o e =9r9 re7orce7, e S9e 7 9ccorer

9=< re7o=7b4 = e eor9o=, 9 :r9=7 o e ICC7HI7

o>=er7 o@er e =9r9 re7orce7 >= er 9=ce7r9 =er7? 7 ere774


55/168

traditional hunting grounds, fish in the traditional fishing grounds, forests or timberin the sacred places, etc and all other natural resources found 'ithin the ancestraldomains I==er7 o=4 o@er

e 9=< >= e 9=ce7r9

9 7e9 o =9r9 re7orce7, 9=< e7e ro@7o=7, 97 79 be


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co=r9r4 o Seco= 2, Arce II o e 18 Co=7o=.

bJ !e Sm9+Sc9e U9o= o N9r9 Re7orce7 I= Sec. bJ o e

IRA I7 Ao>e< U==er7 o@er =9r9 re7orce7 rem9= > e S9e 9=< e IRA =

Seco= bJ mere4 :r9=7 e ICC7HI7 e r: o m9=9:e em, viz/

*ec # %b& Right to 0evelop 9ands and Natural Resources== *ub:ect to *ection 8hereof, right to develop, control and use lands and territories traditionally occupied,o'ned, or usedB to manage and conserve natural resources 'ithin the territoriesand uphold the responsibilities for future generationsB to benefit and share theprofits from allocation and utilization of the natural resources found thereinB theright to negotiate the terms and conditions for the exploration of natural resources

in the areas for the purpose of ensuring ecological, environmental protection andthe conservation measures, pursuant to national and customary la'sB the right toan informed and intelligent participation in the formulation and implementation ofany pro:ect, government or private, that 'ill affect or impact upon the ancestraldomains and to receive :ust and fair compensation for any damages 'hich theymay sustain as a result of the pro:ectB and the right to effective measures by thegovernment to prevent any interference 'ith, alienation and encroachment uponthese rightsB

4he r: o


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f& the right to effective measures by the government to prevent any interference'ith, alienation and encroachment upon these rights-+"".

O>=er7 o@er e =9r9 re7orce7 = e 9=ce7r9 e S9e 9=< e ICC7HI7 9re mere4 :r9=e< e r: o ?m9=9:e9=< co=7er@e? em or re :e=er9o=7, ?be=e 9=< 79re? e ro7

rom er 9oc9o= 9=< 9o=, 9=< ?=e:o9e e erm7 9=s Alliance that carried outsuccessful campaigns against the building of the Chico River 0am in $)!$=!+ and

they have since become one of the best=organized indigenous bodies in the 'orld-+D5.

Presently, there is a gro'ing concern for indigenous rights in the internationalscene 4his came as a result of the increased publicity focused on the continuingdisrespect for indigenous human rights and the destruction of the indigenouspeoples> environment, together 'ith the national governments> inability to deal 'iththe situation-+D$.Indigenous rights came as a result of both human rights andenvironmental protection, and have become a part of today>s priorities for theinternational agenda-+D+.

International institutions and bodies have realized the necessity of applying policies,programs and specific rules concerning IPs in some nations 4he orld 1an(, forexample, first adopted a policy on IPs as a result of the dismal experience ofpro:ects in 9atin America-+D".4he orld 1an( no' see(s to apply its current policyon IPs to some of its pro:ects in Asia 4his policy has provided an influential modelfor the pro:ects of the Asian 0evelopment 1an(-+DD.

4he $)!# Philippine Constitution formally recognizes the existence of ICCs


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CONC&USION

4he struggle of the 7ilipinos throughout colonial history had been plagued by ethnic

and religious differences 4hese differences 'ere carried over and magnified by thePhilippine government through the imposition of a national legal order that ismostly foreign in origin or derivation-+$.9argely unpopulist, the present legalsystem has resulted in the alienation of a large sector of society, specifically, theindigenous peoples 4he histories and cultures of the indigenes are relevant to theevolution of Philippine culture and are vital to the understanding of contemporaryproblems-++.It is through the IPRA that an attempt 'as made by our legislators tounderstand 7ilipino society not in terms of myths and biases but through commonexperiences in the course of history 4he Philippines became a democracy acentennial ago and the decolonization process still continues If the evolution of the

7ilipino people into a democratic society is to truly proceed democratically, ie, ifthe 7ilipinos as a 'hole are to participate fully in the tas( of continuingdemocratization,-+".it is this Court>s duty to ac(no'ledge the presence ofindigenous and customary la's in the country and affirm their co=existence 'ith theland la's in our national legal system

ith the foregoing disuisitions, I vote to uphold the constitutionality of theIndigenous Peoples Rights Act of $))#

-$.Chief 6udge, H* Court of Appeals for the *eventh CircuitB *enior 9ecturer,Hniversity of Chicago 9a' *chool

-+.4he Hniversity of Chicago 9a' Revie', ol 8#, *ummer +555, No ", p #"

-".0ominium is distinguished from imperium 'hich is the government authoritypossessed by the state expressed in the concept of sovereignty== 9ee ;ong ;o( v0avid, D! *CRA "#+, "## -$)#+.

-D.alenton v 2urciano, " Phil "#, D" -$)5D.B *ee also 7lorencio 0R Ponce,4he Philippine 4orrens *ystem, p $" -$)8D.

-.Antonio ; Noble:as, 9and 4itles and 0eeds, p -$)!8.B these grants 'erebetter (no'n as repartimientos and encomiendas Repartimientos 'ere handoutsto the military as fitting re'ard for their services to the *panish cro'n 4heencomiendas 'ere given to *paniards to administer and develop 'ith the right toreceive and en:oy for themselves the tributes of the natives assigned to them==


63/168

Ponce, su$ra, p $+, citing 1enitez, ;istory of the Philippines, pp $+=$+8

-8.Narciso Pena, Registration of 9and 4itles and 0eeds, p + -$))D.

-#.4he 2ortgage 9a' is a misnomer because it is primarily a la' on registration of

property and secondarily a mortgage la'== Ponce, su$ra, at $8

-!.Ponce, su$ra, at $

-)." Phil "# -$)5D.

-$5.%d at D5

-$$.%d.at D!

-$+.%d at D"=DD

-$".%d at D"

-$D.%d at D+=D" 4hese comments by the court are clear expressions of theconcept that Cro'n holdings embraced both im$eriumand dominium==2a 9ourdesAranal=*ereno and Roan 9ibarios, *e %nera0e Be'een /aional !and !a' and#alinga !and !a', ! P96 D+5, D+" -$)!".

-$.%d at D=D8

-$8.%d at D"

-$#.%d at #

-$!.%d at "=DB alenton 'as applied in Cansino v aldez, 8 Phil "+5 -$)58.B4iglao v Insular 3overnment, # Phil !5 -$)58.B and CariJo v Insular 3overnment,# Phil $"+ -$)58.B all decided by the Philippine *upreme Court

-$).Please see *ection #5, Act )+8

-+5.Ponce, su$ra, at ""

-+$.2ontano v Insular 3overnment, $+ Phil #+ -$)5).B also cited in Ponce, su$ra,at "+

-++.Archbishop of 2anila v 0irector of 9ands, +# Phil +D -$)$D.B also cited inPonce, su$ra, at "+


64/168

-+".Antonio ; Noble:as, 9and 4itles and 0eeds, p +5 -$)8$.

-+D.Ponce, su$ra, at "+

-+.PeJa, Registration of 9and 4itles and 0eeds, p +8 -$)!+.B Noble:as, su$ra, at"+

-+8.Noble:as, su$ra, at "+

-+#.Ponce, su$ra, at $+"=$+DB Noble:as, su$ra, at ""

-+!.+ Aruego, 4he 7raming of the Philippine Constitution, p )+ -$)"#.

-+).%d at 855

-"5.%d at 855=85$

-"$.%bid

-"+.*ection #

-"".*ection !

-"D.*ections $" to +5

-".*ections +$ to +!

-"8.*ections +) to "#

-"#.*ections "! and D5

-"!.*ections #D to ##

-").*ection 8)

-D5.*ection #"

-D$.Convention Conerning Indigenous and 4ribal Peoples in Independent Countries,6une +#, $)!)

-D+.3uide to RA !"#$, published by the Coalition for Ips Rights and ancestral0omains in cooperation 'ith the I9/ and 1ilance=Asia 0epartment, p D -$))).==


65/168

hereinafter referred to as Guide o R.9. 12=(.

-D".4a(en from the list of IPs sbmitted by Rep Andolana to the house ofRepresentatives during the deliberations on ;1 No )$+==Interpellations of Aug+5, $))#, pp 555!8=555) lost tribes such as the 9utangan and 4atang have

not been included

-DD.;o' these people came to the Philippines may be explained by t'o theories/ne vie', generally lin(ed to Professor /tley ; 1eyer, suggests the 'avetheory==a series of arrivals in the archipelago bringing in different types and levelsof culture 4he Negritos, dar(=s(inned pygmies, came bet'een +,555 to "5,5551C 4heir cultural remains are preserved by the Negrito=type 7ilipinos found in9uzon, isayas and 2indanao 4heir relatively inferior culture did not enable themto overcome the pressures from the second 'ave of people, the Indonesians A and1 'ho came in ,555 and ",55 1C 4hey are represented today by the Falinga,

3addang, Isneg, 2angyan, 4agbanua, 2anobo, 2andaya, *ubanon, and *ama 4hefirst group 'as pushed inland as the second occupied the coastal and do'nriversettlements 4he last 'ave involved 2alay migrations bet'een 55 1C and $,55A0 they had a more advanced culture based on metal age technology 4hey arerepresented by the Christianized and Islamized 7ilipinos 'ho pushed the Indonesiangroups inland and occupied much of the coastal, lo'land and do'nstream areas

A second vie' is postulated by Robert 7ox, 7 9anda 6ocana, Alfredo Evangelista,and 6esus Peralta 6ocano maintains that the Negritos, Indonesians and 2alaysstand co=eual as ethnic groups 'ithout any one being dominant, racially or

culturally 4he geographic distribution of the ethno=linguistic groups, 'hich sho'soverlapping of other'ise similar racial strains in both upland and lo'land culturesor coastal and inland communities, suggests a random and unstructured advent ofdifferent (inds of groups in the archipelago==*amuel F 4an,9 isory o ePili$$ines, published by the 2anila *tudies Association, Inc and the PhilippineNational ;istorical society, Inc, pp ""="D -$))#.B 4eodoro A Agoncillo, isory oe ili$ino Peo$le, p +$ -$))5.

-D.4an, su$ra, at "="8

-D8.

/nofre 0 Corpuz, *e Roos o e ili$ino /aion,Philippine Centennial %$!)!=$))!& Edition, vol $, p $", A(lahi foundation, Inc -$)!). It 'as in !55=$,555A0 that the Ifugaos of Northern 9uzon built the rice terraces==%d at "#

-D#.%d at =8

-D!.%d at $"


66/168

-D).4eodoro A Agoncillo, isory o e ili$ino Peo$le, p D -$))5.

-5.Corpuz, su$ra, at

-$.%d at DD=D

-+.Agoncillo, su$ra, at D5

-".%d at D5=D$

-D.Rafael Iriarte, isory o e Judi0ial Sysem, e Pili$$ine %ndigenous Ara Prioro (


67/168

'as a gold sala(ot and a long gold nec(lace = Agoncillo, su$ra, at +

-8.Constantino, su$ra, at "!

-88.Corpuz, su$ra, at ")

-8#.Resettlement==Fba&o el son de la 0am$anaF%under the sound of the bell& orFba&o el oEue de la 0am$anaF%Hnder the peal of the bell&

-8!.People v Cayat, 8! Phil $+, $# -$)").

-8).%d at $#, citing the 0ecree of the 3overnor=3eneral of the Philippines, 6an $D,$!!#

-#5.Agoncillo, su$ra, at !5

-#$.%d at !5

-#+.Corpuz, su$ra, at +##=+#!

-#".%d at +##

-#D.%d, N.B.1ut see discussion in CariJo v Insular 3overnment, infra, 'here theHnited *tates *upreme Court found that the *panish decrees in the Philippinesappeared to recognize that the natives o'ned some land )eer = e

meme=9o= o e7e ere9c94 re7ece< >97 =o


68/168

-!+.Rubi v Provincial 1oard of 2indoro, su$ra, at 8)"

-!".Charles 2acdonald, %ndigenous Peo$les o e Pili$$ines Be'een Segregaionand %negraion, Indigenous Peoples of Asia, p "D!, ed by R; 1arnes, A 3ray

and 1 Fingsburry, pub by Association for Asian *tudies -$)). 4he 1NC4 made a1onto( and subanon ethnography, a history of *ulu genealogy, and a compilationon unhispanized peoples in northern 9uzon==/'en 6 9ynch, 6r, *e Pili$$ineColonial Di0oomy@ Attraction and 0isenfranchisement, 8" P 9 6 $")=$D5 -$)!!.

-!D.RA No $!!! of $)#

-!.SeePeople v Cayat, su$ra, at +$B *ee also Rubi v Provincial 1oard of 2indoro,") Phil 885, 8)D -$)$).

-!8.2ac0onald, %ndigenous Peo$les o e Pili$$ines, su$ra,at "$

-!#.4he construction of the Ambu(lao and 1inga dams in the $)5>s resulted in theeviction of hundreds of Ibaloi families = Cerilo Rico * Abelardo,9n0esral DomainRigs %ssues, Res$onses, and Re0ommendaions, Ateneo 9a' 6ournal, vol "!, No$, p )+ -$))".

-!!.*ection $$, Art ?, $)#" Constitution

-!).Presidential 0ecrees Nos $5$# and $D$D

-)5.4he PANA2IN, ho'ever, concentrated funds and resources on image=building,publicity, and impact pro:ects In 2indanao, the agency resorted to a policy offorced resettlement on reservations, militarization and intimidation== 2ac0onald,%ndigenous Peo$les o e Pili$$ines, su$ra,at "D)="5

-)$.No occupancy certificates 'ere issued, ho'ever, because the government failedto release the decree>s implementing rules and regulations== Abelardo, su$ra, at$+5=$+$

-)+.

%d, Note $##-)".%d, at )"=)D

-)D.2ac0onald, %ndigenous Peo$le o e Pili$$ines, su$ra, at "$

-).E/ Nos $++=A, $++=1 and $++=C 4he preamble of E/ No $++=1 states@


69/168

1elieving that the ne' government is committed to formulate more vigorouspolicies, plans, programs, and pro:ects for tribal 7ilipinos, other'ise (no'n asIndigenous Cultural Communities, ta(ing into consideration their communalaspirations, customs, traditions, beliefs, and interests, in order to promote andpreserve their rich cultural heritage and insure their participation in the country>s

development for national unityB xxx

-)8.Article II, sec ++B Article I, sec , par +B Article ?II, sec B Article ?III, sec8B Article ?I, sec $#B and Article ?I, sec $+

-)#.2ac0onald, Indigenous Peoples of the Philippines,su$ra, at "D

-)!.*amuel F 4an, A ;istory of the Philippines, p D -$))#.

-)).Cordillera *tudies Program, 9and Hse and /'nership and Public Policy in the

Cordillera, +)="5 -nd.B also cited in 0ante 1 3atmaytan, Ancestral 0omainRecognition in the Philippines@ 4rends in 6urisprudence and 9egislation, Phil NatRes 96 No $, pp D#=D! -$))+.

-$55.Abelardo, Ancestral 0omain Rights, su$ra, at )!=)), citing Ponciano 91ennagen, Indigenous Attitudes 4o'ard 9and and Natural Resources of 4ribal7ilipinos, "$ National Council of Churches in the Philippines Ne'sletter, /ct=0ec$))$, at D=)

-$5$.%d at )), citing 6une Prill=1rett, 1onto( 9and 4enure %HP 9a' library,

mimeographed&-$5+.2a 9ourdes Aranal=*ereno and Roan 9ibarios, 4he Interface of National 9and9a' and Falinga 9a', ! P96 D+5, DD5=DD$ -$)!".

-$5".%bid

-$5D.%bid

-$5.%bid

-$58.2a 9ourdes Aranal=*ereno and Roan 9ibarios, 4he Interface, su$ra, at D+5

-$5#.*enate 1ill No $#+! 'as co=sponsored by *enator 2acapagal=Arroyo and co=authored by *enators Alvarez, 2agsaysay, Revilla, 2ercado, Enrile, ;onasan, 4atad,2aceda, *hahani, /smena and Romulo

4he Eighth Congress, through *enators Rasul, Estrada and Romulo filed a


70/168

bill to operationalize the mandate of the $)!# Constitution on indigenous peoples4he bill 'as reported out, sponsored an interpellated but never enacted into la' Inthe Ninth Congress, the bill filed by *enators Rasul and 2acapagal=Arroyo 'asnever sponsored and deliberated upon in the floor

-$5!.*ponsorship *peech of *enator 7lavier, 9egislative ;istory of *1N $#+!, 4enthCongress, *econd Regular *ession, *enate, /ct $8, $))8, pp $=$8

-$5).%d at $+

-$$5.%d at $#=$!

-$$$.%d at $"

-$$+.6ournal of the 4enth Congress of the Philippines, *enate, *ession No , Aug =

8, $))#, pp !8=!#

-$$".Co=authors of the bill 'ere Reps Ermita, 4eves, Plaza, Calalay, Recto, 7ua,9uciano, Abad, Cosalan, Aumentado, de la Cruz, 1autista, *ingson, 0amasing,Romualdo, 2ontilla, 3ermino, erceles==Proceedings of *ept D, $))#, pp 55$5#=55$5!

-$$D.*ponsorship speech of Rep Andolana of ;ouse 1ill No )$+, 2arch +5, $))#

-$$.Interpellation of Aug +5, $))#, 8@$8 pm, p 5558$

-$$8.*ection " -a., IPRA

-$$#.*ection " -b., IPRA

-$$!.3uide to RA !"#$, p $D

-$$).*ection DD -e., IPRA

-$+5.*ection $, IPRA

-$+$.3uide to RA !"#$, p $

-$++.A CA04 refers to a title formally recognizing the right of possession ando'nership of ICCs


71/168

-$+".*ection " -a., IPRA

-$+D.A CA94 refers to a title formally recognizing the rights of the ICCs


72/168

-$D5.%d at )D$

-$D$.%d at )D$=)D+

-$D+.Aranal=*ereno and 9ibarios, *e %nera0e Be'een #alinga !and !a', su$raatD+!==4his artcile 'as one of those circulated among the ConstitutionalCommissioners in the formulation of *ec , Article ?II of the $)!# Constitution %DRecord of the Constitutional Commission ""&

-$D".%d at )DD

-$DD.Certificate of 4itle No + covering the $D! hectares of 1aguio 2unicipality 'asissued not in the name of CariJo 'ho died on 6une 8, $)5!, but to his la'yers 6ohn;ausserman and Charles Cohn and his attorney=in=fact 2etcalf Clar(e ;ausserman,

Cohn and Clar(e sold the land to the H* 3overnment in a 0eed of Guitclaim==Richel 1 9angit, %goroDes0endans Claim Rigs o Cam$ Jon ay, 2anila 4imes,p $, 6an $+, $))!

-$D.%d at )")

-$D8.# P96 +8!, +)"=+)8 -$)!+.

-$D#.7rom $)!# to $)!!, Prof 9ynch allo'ed the P96 to publish parts of hisdoctoral dissertation at the Lale 9a' *chool entitled Invisible Peoples@ A ;istory of

Philippine 9and 9a' Please see the 9egal 1ases of Philippine Colonial*overeignty@ An Inuiry, 8+ P96 +#) -$)!#.B 9and Rights, 9and 9a's and 9andHsurpation@ 4he *panish Era %$8!=$!)!&, 8" P96 !+ -$)!!.B 4he Colonial0ichotomy@ Attraction and 0isenfranchisement, 8" P96 $$+B Invisible Peoples anda ;idden Agenda@ 4he /rigins of Contemporary Philippine 9and 9a's %$)55=$)$"&,8" P96 +D)

-$D!.Native title is a common la' recognition of pre=existing aboriginal landinterests in Autsralia== 2aureen 4ehan, Customary 4itle, ;eritage Protection, andProperty Rights in Australia@ Emerging Patterns of 9and Hse in the Post=2abo Era, #

Pacific Rim 9a' Policy 6ournal, No ", p #8 -6une $))!.-$D).9ynch, Native 4itles, su$ra, Note $8D, p +)"

-$5.") Phil 885 -$)$).

-$$.%d at #$+=#$"


73/168

-$+.%d at 8)D

-$".%d at #55

-$D.D+ C6*, Indians, *ec +) -$)DD ed.

-$. 4here are " (inds of Indian reservations@ %a& those created by treaties prior to$!#$B %b& those created by acts of Congress since $!#$B and %c& those made byExecutive /rders 'here the President has set apart public lands for the use of theIndians in order to (eep them 'ithin a certain territory== D+ C6*, Indians, *ec +)citing *ioux 4ribe of Indians v H* )D Ct Cl $5, $#5, certiorari granted 8+ * Ct8"$, "$ H* #)5, !8 9 Ed $$)D, affirmed 8+ * Ct $5), "$8 H* "$#, !8 9Ed $5$ I 7 ob7er@e< 9 e r7 >o =


74/168

-$8D.9ynch, /aive *ile, su$ra,at +)"=+)DB Cohen, /riginal Indian 4itle, "+ 2inn9R D!=D) -$)D#.

-$8. 8 Pet $, ! 9Ed D!" -$!"+.

-$88. %d at D))

-$8#.%d at 55

-$8!.%d at 5$

-$8).4he title of the government to Indian lands, the na(ed fee, is a sovereign title,the government having no landlord from 'hom it holds the fee== *hoshone 4ribe ofIndians of ind River Reservation in yoming v H*, ! Ct Cl ""$, 0eriorari

granted H* v *hoshone 4ribe of Indians, ! * Ct 85), "5" H* 8+), !+ 9 Ed$5)5, affirmed ! * Ct #)D, "5D H* $$$, !+ 9 Ed $+$", $+$!=$+$) -$)"!.

-$#5.1uttz v Northern Pac R Co, 0a(, at "5 9 Ed ""5, ""B 1eecher v etherby,is, ) H* $#, +D 9 Ed DD5, DD$ -$!##.B see also D+ C6*, Indians, *ec +!-$)DD ed.

-$#$.Annotation, Proo and A?inguismen o 9boriginal ile o %ndian !ands, D$ A9R7ed D+, *ec + -b. -$)#).== hereinafter cited as9boriginal *ile o %ndian !ands

-$#+.

%bidB see also 4ee ;it 4on Indians v H*, "D! H* +#+, )) 9 Ed "$D, "+5, #* Ct "$" -$)., reh den "D! H* )8, )) 9 Ed #", # * Ct +$

-$#". %bidB 4ee ;it 4on Indians v H*, at )) 9 Ed "+5

-$#D./neida Indian Nation v County of /neida, D$D H* 88$, ") 9 Ed +d #", )D *Ct ##+ -$)#D.B H* v Alcea 1an( of 4illamoo(s, "+) H* D5, )$ 9 Ed +) 8# *Ct $8# -$)D8.

-$#. 7or compensation under the Indian Claims Commission Act, the proof of

aboriginal title rests on actual, exclusive and continuous use and occupancy for along time prior to the loss of the property %4he Indian Claims Commission Acta'ards compensation to Indians 'hose aboriginal titles 'ere extinguished by thegovernment through military conuest, creation of a reservation, forcedconfinement of Indians and removal of Indians from certain portions of the land anthe designation of Indian land into forest preserve, grazing district, etc& ==

9boriginal *ile o %ndian !ands, su$ra, at *ecs +-a., "-a., pp D"$, D"", D"#


75/168

-$#8.9boriginal *ile o %ndian !ands, su$ra,at *ec +-b., p D"

-$##.D$ Am 6r +d, %ndians, *ec ) -$)) ed.

-$#!.An allotment of Indian land contains restrictions on alienation of the land

4hese restrictions extend to a devise of the land by 'ill== 2issouri, F 4R Co vH*, +" H* "#, ) 9 Ed $$8, " * Ct 8 -$)$D.B A railroad land grant that falls'ithin Indian land is null and void== Northern P R Co v H*, ++# H* ", #9Ed DD,"" * Ct "8! -$)$".B Portions of Indian land necessary for a railroadright of 'ay 'ere, by the terms of the treaty, declared public land, implying thatland beyond the right of 'ay 'as private== Findred v Hnion PR Co, ++ H* !+,8 9 Ed $+$8, "+ * Ct #!5 -$)$+.B see also D$ Am 6ur +d, Indians, *ec !-$)) ed.

-$#).9boriginal *ile o %ndian !ands, su$ra, at *ec +-a., p D""

-$!5.D+ C6* %ndians, *ec +) -$)DD ed.

-$!$.%bid

-$!+. North American Indians have made much progress in establishing a relationship'ith the national government and developing their o'n la's *ome have their o'ngovernment=recognized constitutions Hsually the recognition of Indian tribesdepends on 'hether the tribe has a reservation North American tribes havereached such an advanced stage that the main issues today evolve around complex

:urisdictional and litigation matters 4ribes have acuired the status of sovereignnations 'ithin another nation, possessing the right to change and gro'== 6ose PauloFastrup, *e %nernaionalizaion o %ndigenous Rigs rom e Anvironmenal anduman Rigs Pers$e0ive,4exas International 9a' 6ournal, vol "+@ )#, $5D-$))#.

-$!".9ynch, Native 4itle, su$ra, at +)"

-$!D.0ante 3atmaytan,9n0esral Domain Re0ogniion in e Pili$$ines *rends inJuris$ruden0e and !egislaion, Phil Nat Res 96 No $, pp D", D5 -Aug $))+.B

see also 4ee ;it 4on Indians v H*, su$ra, at "+5-$!.%bid

-$!8.0 3atmaytan, su$ra, citing Churchill, 4he Earth is /ur 2other@ *truggles forAmerican Indian 9and and 9iberation in the Contemporary Hnited *tates, 4he *tateof Native America@ 3enocide, Colonization and Resistance $") %2 6aimes $))+&Band Indian 9a' Resource Center, Hnited *tates 0enial of Indian Property Rights@ A


76/168

*tudy in 9a'less Po'er and Racial 0iscrimination, Rethin(ing Indian 9a' $%National 9a'yers 3uild, Committee on Native American *truggles $)!+&

-$!#.%d, Note +!, stating that some earlier decisions of the H* *upreme Courthave held that Congress is sub:ect to the strictures of the Constitution in dealing

'ith Indians hen an Indian property is ta(en for non=Indian use, the H*government is liable for payment of compensation, and an uncompensated ta(ingmay be en:oined 7 Cohen, ;andboo( of 7ederal Indian 9a' +$# -$)!+., citing*hoshone 4ribe v H* +)) H* D#8 -$)"#.B Choate v 4rapp, ++D H* 88-$)$+.B and 9ane v Pueblo of *anta Rosa, +D) H* $$5 -$)$).

-$!!.See0iscussion, inra, Part I %c& %+&

-$!).*usi v Razon, D! Phil D+D -$)+.B ;erico v 0ar, ) *CRA D"# -$)!5.

-$)5.%bid

-$)$.0irector of 9ands v Intermediate Appellate Court, $D8 *CRA 5) -$)!8.B0irector of 9ands v 1uyco, +$8 *CRA #! -$))+.B Republic v Court of Appeals and9apina, +" *CRA 8# -$))D.

-$)+.# Phil !)5 -$)D8.

-$)". %d at !)+

-$)D.

*ec D! -b., CA $D$-$).*ec D! -c., CA $D$, as amended 4his provision 'as added in $)8D by RA"!#+

-$)8.*ection $+, IPRA

-$)#.4ime immemorial refers to a period of time 'hen as far bac( as memory cango, certain ICCs


77/168

IPRA is an exception to *ection $, P0 #5, the Revised 7orestry Code

-+5$.Charles 2ac0onald, %ndigenous Peo$les o e Pili$$ines Be'eenSegregaion and %negraion, Indigenous Peoples of Asia, su$ra, at pp "D, "5

-+5+.*ection , Article ?II, $)!# Constitution

-+5".ords in bold 'ere amendments introduced by RA "!#+ in $)8D

-+5D.ords in bold 'ere amendments introduced by RA "!#+ on 6une $!, $)8D/n 6anuary +, $)##, ho'ever, *ec D! -b. and D! -c. 'ere further amended byP0 $5#" stating that these provisions on cultural minorities apply o=4 o9e=9be9=<


78/168

-+$.*ection $$#, Corporation Code Please see also 9a ina,9rgumens orCommunal *ile, Par %%,su$ra, at +"

-+$8.*ection , par +, Article ?II, $)!# Constitution

-+$#.Customary la' is recognized by the 9ocal 3overnment Code of $))$ in solvingdisputes among members of the indigenous communities, viz@

FSe0. )(+ H0> Con0iliaion among members o indigenous 0ulural

0ommuniies== 4he customs and traditions of indigenous cultural communities shallbe applied in settling disputes bet'een members of the cultural communities

-+$!.9a' 'rites custom into contract=;ong(ong *hanghai 1an( v Peters, $8 Phil+!D -$)$5.

4he Civil Code provides@

F9r. (( Customs 'hich are contrary to la', public order or public policyshall not be countenanced

F9r. (+ A custom must be proved as a fact, according to the rules ofevidence

-+$).Article #! on marriages bet'een 2ohammedans or pagans 'ho live in the non=Christian provinces== this is no' Art "" of the 7amily CodeB Art $$!, no' Art #D

of the 7amily Code on property relations bet'een spousesB Art ## on theusufructuary of 'oodlandB Art 8# on easement of right of 'ay for passage oflivestoc(B Arts 8#!, $"$, $"#8, $++, $8D and $## Please see Auino, CivilCode, vol $, p +

-++5.Castle 1ros v 3utierrez ;ermanos, $$ Phil 8+) -$)5!.B In Re@ 7irm Name of/zaeta Romulo, )+ *CRA $ -$)#).B Lao Fee v *y=3onzales, $8# *CRA #"8 -$)!!.BPlease see Auino, Civil Code, vol $, p +8 for a list of other cases

-++$.4his situation is analogous to the 2uslim code or the Code of 2uslim Personal

9a's %P0 $5!"& 'hich too( effect on 7ebruary D, $)## despite the effectivity ofthe Civil Code and the 7amily Code P0 $5!" governs persons, family relationsand succession among 2uslims, the ad:udication and settlement of disputes, theorganization of the *hari>a courts, etc

-+++.2ariflor P Pagusara, *e #alinga %li Culural-A0ologi0al Rele0ions on%ndigenous *eora and Pra?is o Man-/aure Relaionsi$, 0a(ami La Nan 0agami,p "8, Papers and Proceedings of the $stCordillera 2uti=*ectoral 9and Congress, $$=


79/168

$D 2arch $)!", Cordillera Consultative Committee -$)!D.

-++".*ection +, Article ?II

-++D.A co=production agreement is defined as one 'herein the government

provides input to the mining operation other than the mineral resource== *ection +8%b&, RA #)D+, the Philippine 2ining Act of $))

-++.A :oint venture agreement is one 'here a :oint=venture company is organizedby the government and the contractor 'ith both parties having euity shares, andthe government entitled to a share in the gross output== *ection +8 %c&, RA #)D+

-++8.A mineral production=sharing agreement is one 'here the government grantsto the contractor the exclusive right to conduct mining operations 'ithin a contractarea and shares in the gross output 4he contractor provides the financing,

technology, management and personnel necessary for the implementation of theagreement== *ection +8 %a&, RA #)D+

-++#.*ection +8, RA #)D+

-++!.*ection " -d., People>s *mall=*cale 2ining Act of $))$ %RA #5#8& provides@

*ec " -d. >*mall=scale mining contract> refers to co=production, :oint venture ormineral production sharing agreement bet'een the *tate and a small=scale miningcontractor for the small=scale utilization of a plot of mineral land

-++).*ection " -b., RA #5#8

-+"5.NCIP Administrative /rder No $, *eries of $))!

-+"$.In Republic v.Court of Appeals, $85 *CRA ++!, +") -$)!!., Cruz,J,$onene,it 'as declared that if a person is the o'ner of a piece of agricultural land on 'hichminerals are discovered, his o'nership of such land does not give him the right toextract or utilize the said minerals 'ithout the permission of the *tate to 'hichsuch minerals belong== also cited in ; de 9eon, Phil Constitutional 9a', Principles

and Cases, vol +, pp !55=!5$ -$))).-+"+.*ee 3round I, 3rounds to Issue rit of Prohibition, Petition, p $D

-+"".*ection # %b& is sub:ect to *ection 8 of the same la' 'hich provides@

Se0.


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recognized and respected

4he la' too( effect $ days upon publication in the /3 or in any + ne'spapers ofgeneral circulation %*ec !D, IPRA& 4he IPRA 'as published in the Chronicle and2alaya on Nov #, $))#

-+"D.*ection ) of the IPRA also gives the ICCs


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-+").Eg International Indian 4reaty Council, orld Council of IPs

-+D5.3ray, 4he Indigenous 2ovement in Asia, su$ra, at DD, citing the Internationalor( 3roup for Indigenous Affairs, $)!!

-+D$.6ose Paulo Fastrup, 4he Internationalization of Indigenous Rights from theEnvironmental and ;uman Rights Perspective, "+ 4exas International 9a' 6ournal)#, $5+ -$))#.

-+D+.1enedict Fingsbury, Indigenous Peoples in International 9a'@ A ConstructivistApproach to the Asian Controversy, 4he American 6ournal of International 9a', vol)+@ D$D, D+) -$))!.

-+D".4he orld 1an( supported the Chico 0am pro:ect 0ue to the Falingas>

opposition, the 1 pulled out of the pro:ect but the conflict bet'een the Philippinegovernment and the natives endured long after== 2arcus Colchester, IndigenousPeoples> Rights and *ustainable Resource Hse in *outh and *outheast Asia,Indigenous Peoples of Asia, su$ra, pp ), #$=#+

-+DD.Fingsbury, su$ra, at D$#

-+D.*ection ++, Article II, $)!# Constitution

-+D8.Interpellation of *enator 7lavier on *1 No $#+!, 0eliberation on *econd

Reading, November +5, $))8, p +5-+D#.3uide to RA !"#$, Coalition for IPs Rights and Ancestral 0omains, theInternational 9abor /rganization, and the I9/=1ilance= Asia 0ep>t, p " -$))).

-+D!.Also referred to as the Indigenous and 4ribal Peoples Convention, $)!)

-+D).*ee Introduction to I9/ Convention No $8), par D

-+5.%d, pars and 8

-+$.Perfecto 7ernandez, 4o'ards a 0efinition of National Policy on Recognition ofEthnic 9a' 'ithin the Philippine 9egal /rder, P96 "!", "! -$)!5.

-++.*amuel F 4an, A ;istory of the Philippines, 2anila *tudies Association, Inc andthe Phil National ;istorical *ociety, Inc, p 8 -$))#.


82/168

-+".7ernandez, su$ra, at "!, ")$

*EPARA4E /PINI/N

I4H3,J@

A= 77e o :r9@e =9o=9 =ere7 =


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provisions of Republic Act No !"#$, a la' that obviously is yet incapable of exacteuation in its significance to the nation and its people no' and in the generationsyet to come Republic Act No !"#$, other'ise also (no'n as the IndigenousPeoples Rights Act of $))# %IPRA&, enacted into la' in $))# and made effectiveon ++ November $))#, is apparently intended to be a legislative response to the

$)!# Constitution 'hich recognizes the rights of indigenous cultural communities'ithin the frame'or( of national unity and development-8.and commands the*tate, 7b;ec o e ro@7o=7 o 7 Co=7o= 9=< =9o=9


84/168

Article ?II of the $)!# Constitution expresses that all 9==e< b4 e S9e, and, 'ith theexception of agricultural lands, 79 =o be 9e=9e o e eoeexpressed in the Constitution It is in them that sovereigntyresides and from them that all government authority emanates-$D.It is not then fora court ruling or any piece of legislation to be conformed to by the fundamental la',but it is for the former to adapt to the latter, and 7 e 7o@ere:= 9c 9m7, be>ee= em, 79=< =@o9e


85/168

4he second paragraph of *ection of Article ?II of the Constitution allo's Congressto provide for the applicability of customary la's governing property rights orrelations in determining the o'nership and extent of ancestral domains I do notsee this statement as saying that Congress may enact a la' that 'ould simplyexpress that customary la's shall govern and end it there ;ad it been so, the

Constitution could have itself easily provided 'ithout having to still commissionCongress to do it 2r Chief 6ustice 0avide has explained this authority ofCongress, during the deliberations of the $)!8 Constitutional Convention, thus@

%r. D9@


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-".9egaspi vs Civil *ervice Commission, $5 *CRA "5, D5B 4aJada vs 4uvera,$"8 *CRA +#, "8, "#

-D.0efensor *antiago, 2iriam, Constitutional 9a', 7irst Edition, $))D, p $$B see alsoRev 7r 6oauin 1ernas, *6, on the $)!# Constitution of the Republic of the

Philippines, $))8 Ed, pp ""8=""#

-./posa vs 7actoran, 6r, ++D *CRA #)+

-8.Art $$, *ec ++

-#.Art ?II, *ec

-!.*ec +

-).II Aruego, 4he 7raming of the Philippine Constitution, p )D

-$5.%bid, p )

-$$.%bid, p 855

-$+.C/N*4, Art ?II, *ec +B 2iners Association of the Philippines, Inc, vs 7actoran,6r, +D5 *CRA $55

-$".D$ Phil )"

-$D.C/N*4, Art II, *ec $

-$.D Record of the Constitutional Commission "+

-$8.$D8 *CRA DD8

SEARA!E OINION

FAPHNAN,J@

Lou as( if 'e o'n the land ;o' can you o'n that 'hich 'ill outlive youK /nlythe race o'n the land because only the race lives forever 4o claim a p

ipra case full txt

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