separate opinion justice kapunan

7/26/2019 Separate Opinion Justice Kapunan

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SEPARATE OPINION

KAPUNAN, J.:

You ask if we own the land. . . How can you own that which will outlive you?Only the race own the land because only the race lives forever. To claim apiece of land is a birthright of every man. The lowly animals claim their place;how much more man? Man is born to live. pu !abunian" lord of us all" gaveus life and placed us in the world to live human lives. nd where shall weobtain life? #rom the land. To work $the land% is an obligation" not merely aright. &n tilling the land" you possess it. nd so land is a grace that must benurtured. To enrich it and make it fructify is the eternal e'hortation of pu!abunian to all his children. (and is sacred. (and is beloved. #rom its womb

springs life.

) Macli)ing *ulag" +hieftain of the !alinga Tribe $,uoted in -onciano (. ennagen"/Tribal #ilipinos/ in &ndigenous 0iew of (and and the 1nvironment" ed. 2helton H.*avis" the 3orld ank *iscussion -apers" 4o. 566" pp. 75)78.%

&t is established doctrine that a statute should be construed whenever possible inharmony with" rather than in violation of" the +onstitution. 95:The presumption is that thelegislature intended to enact a valid" sensible and ust law and one which operates nofurther than may be necessary to effectuate the specific purpose of the law. 98:

The challenged provisions of the &ndigenous -eoples


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otherwise occupied or used" and which have been confiscated" occupied" used ordamaged without the free and informed consent of the indigenous peoples.

A Historical Backdrop on the Indieno!s Peoples

The term indigenous traces its origin to the Old (atin word indu" meaning within. &nthe sense the term has come to be used" it is nearer in meaning to the (atinword indigenus" which means native.9C:&ndigenous refers to that which originated or hasbeen produced naturally in a particular land" and has not been introduced from theoutside.9B:&n international law" the definition of what constitutes indigenous peoplesattains some degree of controversy. 4o definition of the term indigenous peoples hasbeen adopted by the >nited 4ations $>4%" although >4 practice has been guided by aworking definition in the 5A6@ 4 2pecial


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characteri=ed them as uncivili=ed"96:backward people"9A:with barbarous practices95F:and alow order of intelligence.955:

*rawing inspiration from both our fundamental law and international law" &-


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the maority reoriented itself to 3estern influence" the culture of the minorities hasretained its essentially native character.

One of every si' #ilipinos is a member of an indigenous cultural community. roundtwelve million #ilipinos are members of the one hundred and ten or so indigenouscultural communities"95E:accounting for more than seventeenper centumof the estimated

seventy million #ilipinos 95@:in our country. 2adly" the indigenous peoples are one of thepoorest sectors of -hilippine society. The incidence of poverty and malnutrition amongthem is significantly higher than the national average. The indigenous peoples are alsoamong the most powerless.-erhaps because of their inability to speak the language oflaw and power" they have been relegated to the fringes of society. They have little" ifany" voice in national politics and enoy the least protection from economic e'ploitation.

The "onstit!tional Policies on Indieno!s Peoples

The framers of the 5A67 +onstitution" looking back to the long destitution of our lessfortunate brothers" fittingly saw the historic opportunity to actuali=e the ideals of peopleempowerment and social ustice" and to reach out particularly to the marginali=edsectors of society" including the indigenous peoples. They incorporated in thefundamental law several provisions recogni=ing and protecting the rights and interestsof the indigenous peoples" to witD

2ec. 88. The 2tate recogni=es and promotes the rights of indigenous peopleswithin the framework of national unity and development.957:

2ec. E. The 2tate" subect to the provisions of this +onstitution and national

development policies and programs" shall protect the rights of indigenouscultural communities to their ancestral lands to ensure their economic" social"and cultural well)being.

The +ongress may provide for the applicability of customary laws governingproperty rights and relations in determining the ownership and e'tent ofancestral domains.956:

2ec. 5. The +ongress shall give the highest priority to the enactment ofmeasures that protect and enhance the right of all the people to human

dignity" reduce social" economic and political ine,ualities" and remove culturaline,uities by e,uitably diffusing wealth and political power for the commongood.

To this end" the 2tate shall regulate the ac,uisition" ownership" use anddisposition of property and its increments.95A:
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2ec. @. The 2tate shall apply the principles of agrarian reform or stewardship"whenever applicable in accordance with law" in the disposition and utili=ationof other natural resources" including lands of the public domain under lease orconcession" subect to prior rights" homestead rights of small settlers" and therights of indigenous communities to their ancestral lands.98F:

2ec. 57. The 2tate shall recogni=e" respect" and protect the rights ofindigenous cultural communities to preserve and develop their cultures"traditions" and institutions. &t shall consider these rights in the formulation ofnational plans and policies.985:

2ec. 58. The +ongress may create a consultative body to advise the-resident on policies affecting indigenous cultural communities" the maority ofthe members of which shall come from such communities.988:

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constitutional problems.9C5: petition raising a constitutional ,uestion does not present anactual controversy" unless it alleges a legal right or power. Moreover" it must show that aconflict of rights e'ists" for inherent in the term controversy is the presence of opposingviews or contentions.9C8:Otherwise" the +ourt will be forced to resolve issues whichremain unfocused because they lack such concreteness provided when a ,uestion

emerges precisely framed from a clash of adversary arguments e'ploring every aspectof a multi)faceted situation embracing conflicting and demanding interests. 9CC:Thecontroversy must also be usticiable; that is" it must be susceptible of udicialdetermination. 9CB:

&n the case at bar" there e'ists a live controversy involving a clash of legal rights. law has been enacted" and the &mplementing


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s!''icient to sho% that he is a citi)en and as s!ch interested in thee*ec!tion o' the la%s.9B8:

This +ourt has recogni=ed that a public right" or that which belongs to the people atlarge" may also be the subect of an actual case or controversy. &n "everino, we ruled

that a private citi=en may enforce a public right in behalf of other citi=ens. 3e opinedtherein thatD

9T:he right which 9petitioner: seeks to enforce is not greater or different fromthat of any other ,ualified elector in the municipality of 2ilay. &t is also true thatthe inury which he would suffer in case he fails to obtain the relief soughtwould not be greater or different from that of the other electors; but he isseekin to en'orce a p!(lic rihtas distinguished from a private right.Thereal part$ in interest is the p!(lic" or the ,ualified electors of the town of2ilay.Each elector has the sa#e riht and %o!ld s!''er the sa#e

in+!r$. Each elector stands on the sa#e (asis %ith re'erence to#aintainin a petitionwhether or not the relief sought by the relator shouldbe granted.9BC:

&n Taada v. Tuvera"9BB:the +ourt enforced the public right to due process and to beinformed of matters of public concern.

&n #arcia vs. Board of Investments,9BE:the +ourt upheld the public right to be heardor consulted on matters of national concern.

&n $posa v. %actoran"9B@:the +ourt recogni=ed the public right of citi=ens to abalanced and healthful ecology which" for the first time in our nations constitutional

history" is solemnly incorporated in the fundamental law. 9B7:Mr. ustice $now +hiefustice% Hilario I. *avide" r." delivering the opinion of the +ourt" stated thatD

2uch a right belongs to a different category of rights altogether for it concernsnothing less than self)preservation and self)perpetuation)aptly and fittingly stressed bypetitioners)the advancement of which may even be said to predate all governments andconstitutions. s a matter of fact" these (asic rihts need not een (e %ritten in the"onstit!tion 'or the$ are ass!#ed to e*ist 'ro# the inception o' h!#ankind. 9B6:

-etitioners" as citi)ens,possess the public right to ensure that the nationalpatrimony is not alienated and diminished in violation of the +onstitution. 2ince thegovernment" as the guardian of the national patrimony" holds it for the benefit of all

#ilipinos without distinction as to ethnicity" it follows that a citi=en has sufficientinterest to maintain a suit to ensure that any grant of concessions covering the nationaleconomy and patrimony strictly complies with constitutional re,uirements. Thus" thepreservation of the integrity and inviolability of the national patrimony is a proper subectof a citi=ens suit.

&n addition" petitioners" as tapayers,possess the right to restrain officials fromwasting public funds through the enforcement of an unconstitutional statute. &t is well)
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settled that a ta'payer has the right to enoin public officials from wasting public fundsthrough the implementation of an unconstitutional statute" 9BA:and by necessity" he mayassail the validity of a statute appropriating public funds. 9EF:The ta'payer has paid hista'es and contributed to the public coffers and" thus" may in,uire into the manner bywhich the proceeds of his ta'es are spent. The e'penditure by an official of the 2tate for

the purpose of administering an invalid law constitutes a misapplication of such funds.9E5:

The &-


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*. 4otwithstanding the failure of petitioners to observe the hierarchy ofcourts" the +ourt assumes urisdiction over the petition in view of theimportance of the issues raised therein.

etween two courts of concurrent original urisdiction" it is the lower court that

should initially pass upon the issues of a case. That way" as a particular case goesthrough the hierarchy of courts" it is shorn of all but the important legal issues or thoseof first impression" which are the proper subect of attention of the appellate court. Thisis a procedural rule borne of e'perience and adopted to improve the administration of

ustice.

This +ourt has consistently enoined litigants to respect the hierarchy of courts.lthough this +ourt has concurrent urisdiction with the


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The issue of prime concernraised by petitioners and the 2olicitor Ieneral revolvesaround the constitutionality of certain provisions of &-


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clans who are members of indigenous cultural communities" including residential lots"rice terraces or paddies" private forests" swidden farms and tree lots. These lands arere,uired to have been occupied" possessed and utili=ed by them or through theirancestors since time immemorial" continuously to the present.9@8:On the other hand" ancestral do#ainsis defined as areasgenerally belonging to

indigenous cultural communities" including ancestral lands" forests" pasture" residentialand agricultural lands" hunting grounds" worship areas" and lands no longer occupiede'clusively by indigenous cultural communities but to which they had traditional access"particularly the home ranges of indigenous cultural communities who are still nomadicor shifting cultivators. ncestral domains also include inland waters" coastal areas andnatural resources therein.9@C:gain" the same are re,uired to have been held under aclaim of ownership" occupied or possessed by &++sG&-s" by themselves or through theirancestors" communally or individually since time immemorial" continuously to thepresent.9@B:>nder 2ection E@" property rights within the ancestral domains alreadye'isting andGor vested upon effectivity of said law shall be recogni=ed and respected.

O%nershipis the cru' of the issue of whether the provisions of &-


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2tate" as successor to 2pain and the >nited 2tates" is the source of anyasserted right of ownership in land.

Third,petitioners and the 2olicitor Ieneral concede that the &ariodoctrinee'ists. However" petitioners maintain that the doctrine merely states that title

to lands of the public domain may be ac,uired by prescription. The 2olicitorIeneral" for his part" argues that the doctrine applies only to alienable lands ofthe public domain and" thus" cannot be e'tended to other lands of the publicdomain such as forest or timber" mineral lands" and national parks.

#ourth,the 2olicitor Ieneral asserts that even assuming that native title overancestral lands and ancestral domains e'isted by virtue of the &ariodoctrine"such native title was e'tinguished upon the ratification of the 5ACE+onstitution.

#ifth" petitioners admit that +ongress is mandated under 2ection E" rticle K&&of the +onstitution to protect that rights of indigenous peoples to theirancestral lands and ancestral domains.However" they contend that themandate is subect to 2ection 8" rticle K&& and the theory of+uraregaliaembodied therein. ccording to petitioners" the recognition andprotection under


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sovereign has over anything in which a subect has a right of property or propriedad.975:These were rights enoyed during feudal times by the king as the sovereign.

The theory of the feudal system was that title to all lands was originally held by the!ing" and while the use of lands was granted out to others who were permitted to holdthem under certain conditions" the !ing theoretically retained the title. 978:y fiction of law"

the !ing was regarded as the original proprietor of all lands" and the true and onlysource of title" and from him all lands were held.97C:The theory of+ura regaliawastherefore nothing more than a natural fruit of con,uest. 97B:

The nited2tates 2upreme +ourt" reversing the decision97@:of thepre)war -hilippine 2upreme +ourt" made the following pronouncementD

' ' ' 1very presumption is and ought to be taken against the Iovernment in acase like the present. &t might" perhaps" be proper and sufficient to say

that %hen, as 'ar (ack as testi#on$ or #e#or$ oes, the land has (eenheld ($ indiid!als !nder a clai# o' priate o%nership, it %ill (epres!#ed to hae (een held in the sa#e %a$ 'ro# (e'ore the Spanishcon&!est, and neer to hae (een p!(lic land. ' ' '.977:$1mphasissupplied.%

The aboveruling institutionali=ed the recognition of the e'istence of native title toland" or ownership of land by #ilipinos by virtue of possession under a claim ofownership since time immemorial and independent of any grant from the 2panish+rown" as an e'ception to the theory of+ura regalia.

&n &ario" an &gorot by the name of Mateo +ario applied for registration in his nameof an ancestral land located in enguet. The applicant established that he and hisancestors had lived on the land" had cultivated it" and had used it as far they couldremember. He also proved that they had all been recogni=ed as owners" the land havingbeen passed on by inheritance according to native custom. However" neither he nor hisancestors had any document of title from the 2panish +rown. The government opposedthe application for registration" invoking the theory of +ura regalia. On appeal" the >nited2tates 2upreme +ourt held that the applicant was entitled to the registration of hisnative title to their ancestral land.

&ariowas decided by the >.2. 2upreme +ourt in 5AFA" at a time when decisions ofthe >.2. +ourt were binding as precedent in our urisdiction.976:3e appliedthe &ariodoctrine in the 5AB@ case of $h &ho vs. Director of ands"97A:where we statedthat 9a:ll lands that were not ac,uired from the Iovernment either by purchase or bygrant" belong to the public domain" but 9a:n e'ception to the rule would be any land thatshould have been in the possession of an occupant and of his predecessors in interestsince time immemorial" for such possession would ustify the presumption that theland had never been part of the public domain or that it had been private property evenbefore the 2panish con,uest.96F:
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-etitioners however aver that the >.2. 2upreme +ourts ruling in &ariowaspremised on the fact that the applicant had complied with the re,uisites of ac,uisitiveprescription" having established that he and his predecessors)in)interest had been inpossession of the property since time immemorial. &n effect" petitioners suggest that titleto the ancestral land applied for by +ario was transferred from the 2tate" as original

owner" to +ario by virtue of prescription. They conclude that the doctrine cannot be thebasis for decreeing by mere legislative fiatthat ownership of vast tracts of land belongsto 9indigenous peoples: without udicial confirmation. 965:

The 2olicitor Ieneral" for his part" claims that the &ariodoctrine applies only toalienable lands of the public domain and" as such" cannot be e'tended to other lands ofthe public domain such as forest or timber" mineral lands" and national parks.

There is no merit in these contentions.

proper reading of &ario would show that the doctrine enunciated therein appliesonly to lands %hich hae al%a$s (een considered as priate" and not to lands of thepublic domain" whether alienable or otherwise. distinction must be made between

ownership of land under native title and ownership by ac,uisitive prescription againstthe 2tate. Ownership by virtue of native title presupposes that the land has been held byits possessor and his predecessors)in)interest in the concept of an owner since timeimmemorial. The land is not ac,uired from the 2tate" that is" 2pain or its successors)in)interest" the >nited 2tates and the -hilippine Iovernment. There has been no transferof title from the 2tate as the land has been regarded as private in character as far backas memory goes. &n contrast" ownership of land by ac,uisitive prescription against the2tate involves a conversion of the character of the property fromalienable public land toprivate land" which presupposes a transfer of title from the 2tate to a privateperson. 2ince native title assumes that the property covered by it is private land and isdeemed never to have been part of the public domain" the 2olicitor Ienerals thesis that

native title under &ario applies only to lands of the public domain iserroneous. +onse,uently" the classification of lands of the public domain intoagricultural" forest or timber" mineral lands" and national parks under the+onstitution 968:is irrelevant to the application of the &ariodoctrine because the


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laws of 2pain" the 2panish +rown was considered to have ac,uired do#iniononly overthe unoccupied and unclaimed portions of our islands. 96@:

&n sending the first e'pedition to the -hilippines" 2pain did not intend to deprive thenatives of their property. Miguel (ope= de (ega=pi was under instruction of the 2panish!ing to do no harm to the natives and to their property. &n this regard" an authority on

the early 2panish colonial period in the -hilippines wroteD

The government of 9the !ing of 2pain: -hilip && regarded the -hilippines as achallenging opportunity to avoid a repetition of the sanguinary con,uests ofMe'ico and -eru. &n his written instructions for theAdelantado(ega=pi" whocommanded the e'pedition" -hilip && envisaged a bloodless pacification of thearchipelago. This e'traordinary document could have been lifted almostverbatim from the lectures of the *ominican theologian" #rancisco de 0itoria"delivered in the >niversity of 2alamanca. The !ing instructed (ega=pi toinform the natives that the 2paniards had come to do no harm to their persons

or to their property. The 2paniards intended to live among them in peace andin friendship and /to e'plain to them the law of esus +hrist by which they willbe saved./ lthough the 2panish e'pedition could defend themselves ifattacked" the royal instructions admonished the commander to commit noaggressive act which might arouse native hostility.967:

2panish colonial laws recogni=ed and respected #ilipino landholdings includingnative land occupancy.966:Thus" the *ecopilacin de eyes de las Indias e'presslyconferred ownership of lands already held by the natives.96A:The royal decrees of 566Fand 56AB did not e'tinguish native title to land in the -hilippines. The earlier royal

decree" dated une 8E" 566F" provided that all those in unlawful possession of royallands must legali=e their possession by means of adustment proceedings" 9AF:and withinthe period specified. The later royal decree" dated #ebruary 5C" 56AB" otherwise knownas the Maura (aw" declared that titles that were capable of adustment under the royaldecree of 566F" but for which adustment was not sought" wereforfeited. *espite the harsh wording of the Maura (aw" it was held in the caseof &ario that the royal decree of 56AB should not be construed as confiscation of title"but merely as the withdrawal of the privilege of registering such title. 9A5:

4either was native title disturbed by the 2panish cession of the -hilippines to the>nited 2tates" contrary to petitioners assertion that the >2 merely succeeded to therights of 2pain" including the latters rights over lands of the public domain. 9A8:>nder the

Treaty of -aris of *ecember 5F" 56A6" the cession of the -hilippines did not impair anyright to property e'isting at the time. 9AC:*uring the merican colonial regime" native titleto land was respected" even protected. The -hilippine ill of 5AF8 provided thatproperty and rights ac,uired by the >2 through cession from 2pain were to beadministered for the benefit of the #ilipinos.9AB:&n obvious adherence to libertarianprinciples" Mc!inleys &nstructions" as well as the -hilippine ill of 5AF8" contained a billof rights embodying the safeguards of the >2 +onstitution. One of these rights" whichserved as an inviolable rule upon every division and branch of the merican colonial
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government in the -hilippines" 9AE:was that no person shall be deprived of life" liberty" orproperty without due process of law.9A@:These vested rights safeguarded by the-hilippine ill of 5AF8 were in turn e'pressly protected by the due process clause of the5ACE +onstitution.


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wrest9ing: control of those portions of the natural resources 9which the 2tate: deemsabsolutely necessary for social welfare and e'istence. On the contrary" said 2ectionrestated the fundamental rule against the diminution of e'isting rights by e'presslyproviding that the ownership of lands of the public domain and other natural resourcesby the 2tate is subect to any e'isting right" grant" lease" or concessions. The e'isting

rights that were intended to be protected must" perforce" include the riht o' o%nershipbyindigenous peoples over their ancestral lands and domains. The words of the lawshould be given their ordinary or usual meaning" 95FF:and the term e'isting rights cannotbe assigned an unduly restrictive definition.

-etitioners concede that +ongress is mandated under 2ection E" rticle K&& of the5A67 +onstitution95F5:to protect the rights of indigenous peoples to their ancestral landsand ancestral domains. 4onetheless" they contend that the recognition and protectionunder &-


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communities to their ancestral lands; Section 13, Article 0I4" decreeing that the 2tate shallrecogni=e" respect" and protect the rights of indigenous cultural communities topreserve and develop their cultures" traditions" and institutions; and Section 1, Article04I" authori=ing the +ongress to create a consultative body to advise the -resident onpolicies affecting indigenous cultural communities.

gain" as articulated in the +onstitution" the first goal of the national economy isthe #ore e&!ita(le distri(!tion o' opport!nities, inco#e, and %ealth.955C:1,uity isgiven prominence as the first obective of national economic development. 955B:Theframers of the +onstitution did not" by the phrase subect to the provisions of this+onstitution and national development policies and programs" intend to establish ahierarchy of constitutional norms. s e'plained by then +ommissioner $now +hiefustice% Hilario I. *avide" r." it was not their obective to make certain interests primaryor paramount" or to create absolute limitations or outright prohibitions; rather" the idea istowards the balancing of interestsD

&2HO- +4&. &n +ommissioner *avides formulation of the first sentence"

he saysD The 2tate" 2>1+T TO TH1 provisions of this +onstitution 4*4T&O4( *101(O-M14T -O(&+&12 4* -


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9557:2pecifically" petitioners and the 2olicitor Ieneral assail 2ections C $a%" 9556:E"955A:and7958F:of &-


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+H&


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found within their ancestral domains" contain any recognition of ownership vis-a-vis thenatural resources.

3hat is evident is that the &-nited 2tates viewed natural resources as a source ofwealth for its nationals. s the owner of natural resources over the -hilippines after thelatters cession from 2pain" the >nited 2tates saw it fit to allow both #ilipino and

merican citi=ens to e'plore and e'ploit minerals in public lands" and to grant patents toprivate mineral lands. person who ac,uired ownership over a parcel of private mineralland pursuant to the laws then prevailing could e'clude other persons" even the 2tate"from e'ploiting minerals within his property.95CB:lthough the >nited 2tates made adistinction between minerals found in public lands and those found in private lands" titlein these minerals was in all cases sourced from the 2tate.The framers of the 5ACE

+onstitution found it necessary to maintain the 2tates ownership over natural resourcesto insure their conservation for future generations of #ilipinos" to preventforeign controlof the country through economic domination; and to avoid situations whereby the-hilippines would become a source of international conflicts" thereby posing danger toits internal security and independence. 95CE:

The declaration of 2tate ownership and control over minerals and other naturalresources in the 5ACE +onstitution was reiterated in both the 5A7C 95C@:and 5A67+onstitutions. 95C7:
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Having ruled that the natural resources which may be found within the ancestraldomains belong to the 2tate" the +ourt deems it necessary to clarify that the urisdictionof the 4+&- with respect to ancestral domains under 2ection E8 9i: of &-pon thecertification of these areas as ancestral domain following the procedure outlined in2ections E5 to EC of the &-


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found to be necessary for critical watersheds" mangroves" wildlife sanctuaries"wilderness" protected areas" forest cover" or reforestation. 95B5:

The 2olicitor Ieneral argues that these provisions deny the 2tate an active anddominant role in the utili=ation of our countrys natural resources. -etitioners" on theother hand" allege that under the +onstitution the e'ploration" development and

utili=ation of natural resources may only be undertaken by the 2tate" either directly orindirectly through co)production" oint venture" or production)sharing agreements. 95B8:Topetitioners" no other method is allowed by the +onstitution. They likewise submit that byvesting ownership of ancestral lands and ancestral domains in the indigenous peoples"&-


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shall (e opened 'or #inin operations %itho!t the prior consent o' the indieno!s c!lt!ral

co##!nit$ concerned95EC:and in the event that the members of such indigenous culturalcommunity give their consent to mining operations within their ancestral land" ro$altiesshall (e paid to the#by the parties to the mining to the contract. 95EB:

&n any case" a careful reading of 2ection 7$b% would reveal that the rights given to

the indigenous peoples are duly circumscribed. These rights are limited only to thefollowingD to #anae and conserenatural resources within territories and !pholditfor future generations; to (ene'it and share the pro'itsfrom allocation and utili=ationof the natural resources found therein; to neotiate the ter#s and conditions 'or thee*plorationof natural resources in the areas for the purpose of ensuring ecological"environmental protection and the conservation measures" pursuant to national andcustomary laws; to an in'or#ed and intellient participationin the formulation andimplementation of any proect" government or private" that will affect or impact upon theancestral domains and to receie +!st and 'air co#pensationfor any damages whichthey may sustain as a result of the proect" and the right to e''ectie #eas!resby thegovernment to prevent any interference with" alienation and encroachment of these

rights.

&t must be noted that the right to negotiate terms and conditions granted under2ection 7$b% pertains only to the e*plorationof natural resources. The term e'plorationrefers only to the search or prospecting of mineral resources" or any other means for thepurpose of determining the e'istence and the feasibility of mining them for profit. 95EE:Thee'ploration" which is merely a preliminary activity" cannot be e,uated with the entireprocess of e'ploration" development and utili=ation of natural resources which under the+onstitution belong to the 2tate.

2ection E7" on the other hand" grants the indigenous peoples priority rights in theutili=ation of natural resources and not absolute ownership thereof. -riority rights does

not mean e'clusive rights. 3hat is granted is merely the right of preference or firstconsideration in the award of privileges provided by e'isting laws and regulations" withdue regard to the needs and welfare of indigenous peoples living in the area.

There is nothing in the assailed law which implies an automatic or mechanicalcharacter in the grant of concessions. 4or does the law negate the e'ercise of sounddiscretion by government entities. 2everal factors still have to be considered. #ore'ample" the e'tent and nature of utili=ation and the conse,uent impact on theenvironment and on the indigenous peoples way of life are importantconsiderations. Moreover" the indigenous peoples must show that they live in the areaand that they are in the best position to undertake the re,uired utili=ation.

&t must be emphasi=ed that the grant of said priority rights to indigenous peoples isnot a blanket authority to disregard pertinent laws and regulations. The utili=ation of saidnatural resources is always subect to compliance by the indigenous peoples withe'isting laws" such as


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sharing agreements with private entities" to utili=e the natural resources which may belocated within the ancestral domains. There is no intention" as between the 2tate andthe indigenous peoples" to create a hierarchy of values; rather" the obect is to balancethe interests of the 2tate for national development and those of the indigenous peoples.

4either does the grant of priority rights to the indigenous peoples e'clude non)

indigenous peoples from undertaking the same activities within the ancestral domainsupon authority granted by the proper governmental agency. To do so would unduly limitthe ownership rights of the 2tate over the natural resources.

To be sure" the act of the 2tate of giving preferential right to a particular sector in theutili=ation of natural resources is nothing new. s previously mentioned" 2ection 7"

rticle K&&& of the +onstitution mandates the protection by the 2tate of the rights ofsubsistence fishermen" especially of local communities" to the preferential use ofcommunal marine and fishing resources" both inland and offshore.

2ection E7 further recogni=es the possibility that the e'ploration and e'ploitation ofnatural resources within the ancestral domains may disrupt the natural environment as

well as the traditional activities of the indigenous peoples therein. Hence" the need forthe prior informed consent of the indigenous peoples before any search for or utili=ationof the natural resources within their ancestral domains is undertaken.

&n a situation where the 2tate intends to directly or indirectly undertake suchactivities" &-


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intent of the law is to protect the rights and interests of the indigenous peoples whichmay be adversely affected by the operation of such entities or licensees.

"orollar$ Iss!es

A. IPRA does not violate the Due Process clause.

The first corollary issue raised by petitioners is whether &-


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(ands shall appear to represent the interest of the


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nent the use of customary laws in determining the ownership and e'tent ofancestral domains" suffice it to say that such is allowed under paragraph 8" 2ection E of

rticle K&& of the +onstitution. 2aid provision states" The +ongress may provide for theapplicability of customary laws governing property rights and relations in determiningthe ownership and e'tent of the ancestral domains. 4otably" the use of customary laws

under &-nder the +ivil +ode" use of customary law is sanctioned" as long as it isproved as a fact according to the rules of evidence" 957A:and it is not contrary to law" publicorder or public policy.956F:Moreover" the (ocal Iovernment +ode of 5AA5 calls for therecognition and application of customary laws to the resolution of issues involvingmembers of indigenous peoples. This law admits the operation of customary laws in the
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settling of disputes if such are ordinarily used in barangays where maority of theinhabitants are members of indigenous peoples. 9565:

B. "ection 0, Part II, *ule 3II of the Implementing *ules of IP*A does notinfringe upon the Presidents po)er of control over the 2ecutive

Department.

The second corollary issue is whether the &mplementing


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recognition of their ancestral domain as well as their rights thereto.9568: &t has beengranted administrative"956C:,uasi)legislative956B:and ,uasi)udicial powers956E:to carry out itsmandate. The diverse nature of the 4+&-s functions renders it impossible to place saidagency entirely under the control of only one branch of government and this" apparently"is the reason for its characteri=ation by +ongress as an independent agency. n

independent agency is defined as an administrative body independent of the e'ecutivebranch or one not subect to a superior head of department" as distinguished from asubordinate agency or an administrative body whose action is subect to administrativereview or revision.956@:

That +ongress did not intend to place the 4+&- under the control of the -resident inall instances is evident in the &-


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their ancestral domains merely amplify what has been earlier granted to them under theaforesaid laws;

$C% 3hile the &-


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9@:&bid. This definition is critici=ed for taking the potentially limited" and controversial view of indigenouspeoples by re,uiring historical continuity with pre)invasion and pre)colonial societies that developed ontheir territories./

97:B


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an e,ual footing from the rights and opportunities which national laws and regulations grant to othermembers of the population; and

f% The 2tate recogni=es its obligations to respond to the strong e'pression of the &++sG&-s for culturalintegrity by assuring ma'imum &++G&- participation in the direction of education" health" as well as otherservices of &++sG&-s" in order to render such services more responsive to the needs and desires of thesecommunities.

Towards these ends" the 2tate shall institute and establish the necessary mechanisms to enforce andguarantee the reali=ation of these rights" taking into consideration their customs" traditions" values"beliefs" interests and institutions" and to adopt and implement measures to protect their rights to theirancestral domains.

98B:2ee 2ections 5C)8F" 2 CB@" C@8 $5A5C%.

9C8:312T1


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9BE:577 2+


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$b% hunting and fishing grounds" and all improvements made by them at any time within the domains;

' ' '

9@5:2ection C$l% 4ative Title refers to pre)con,uest rights to lands and domains which" as far back asmemory reaches" have been held under a claim of private ownership by &++sG&-s" have never been publiclands and are thus indisputably presumed to have been held that way since before the 2panish

+on,uest; ' ' '2ection C$p% Time &mmemorial ) refers to a period of time when as far back as memory can go" certain&++sG&-s are known to have occupied" possessed in the concept of owners" and utili=ed a defined territorydevolved to them" by operation of customary law or inherited from their ancestors" in accordance withtheir customs and traditions.

9@8:2ection C$b% ncestral (ands 2ubect to 2ection E@ hereof" refers to land occupied" possessed andutili=ed by individuals" families and clans who are members of the &++sG&-s since time immemorial" bythemselves or through their predecessors)in)interest" under claims of individual or traditional groupownership" continuously to the present e'cept when interrupted by war" force maeure or displacement byforce" deceit" stealth" or as a conse,uence of government proects or any other voluntary dealingsentered into by the government and private individualsGcorporations" including" but not limited to"residential lots" rice terraces or paddies" private forests" swidden farms and tree lots;

9@C:2ection C$a% ncestral *omains 2ubect to 2ection E@ hereof" refer to all areas generally belonging to&++sG&-s comprising lands" inland waters" coastal areas and natural resources therein" held under a claimof ownership" occupied or possessed by &ndigenous peoples" by themselves or through their ancestors"communally or individually since time immemorial" continuously to the present e'cept when interrupted bywar" force maeure or displacement by force" deceit" stealth or as a conse,uence of government proectsor any other voluntary dealings entered into by the government and private individualsGcorporations" andwhich are necessary to ensure their economic" social and cultural welfare. &t shall include ancestral lands"forests" pasture" residential" agricultural" and other lands individually owned whether alienable anddisposable or otherwise" hunting grounds" burial grounds" worship areas" bodies of water" mineral andother resources" and lands which may no longer be e'clusively be occupied by &ndigenous peoples butfrom which they traditionally had access to for their subsistence and traditional activities" particularly thehome ranges of &++sG&-s who are still nomadic andGor shifting cultivators.

9@B:

&bid.9@E:Hebron v.


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977:+ario vs. &nsular Iovernment" supra note 7E" at AB5.

976:2ection 5F" -hilippine ill of 5AF8.

97A:7E -hil 6AF $5AB@%.

96F:&d." at 6A8.

965:Memorandum of -etitioners"


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ook @" Title 5" (aw C8" decreed by -hilip &&" 5@ pril 5E6F. 3e command the 0iceroys" -residents" andudiencias that they see to it that the &ndians have complete liberty in their dispositions.

nited 2tates for military and otherreservations of the Iovernment of the >nited 2tates" are hereby placed under the control of theIovernment of said &slands" to be administered for the benefit of the inhabitants thereof" e'cept asprovided by this ct.

9AE:Mc!inleys &nstructions to the 2econd -hilippine +ommission" in Mendo=a" #rom Mc!inleys &nstructionsto the 4ew +onstitutionD *ocuments on the -hilippine +onstitutional 2ystem $5A76% p. 75.

9A@:&d." at @E)7E; 2ection E" -hilippine ill of 5AF8.

9A7:2olicitor Ienerals Memorandum"


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five years" renewable for another twenty five years" e'cept as to water rights for irrigation" water supply"fisheries or industrial uses other than the development of water power" in which cases beneficial use maybe the measure and limit of the grant.

95FF:+entral =ucarera *on -edro v. +entral ank" 5FB -hil EA6 $5AEB%.

95F5:2ec. E" rticle K&&. The 2tate" subect to the provisions of this +onstitution and national development

policies and programs" shall protect the rights of indigenous cultural communities to their ancestral landsto ensure their economic" social" and cultural well)being.

The +ongress may provide for the applicability of customary laws governing property rights and relationsin determining the ownership and e'tent of ancestral domains.

95F8:2ee Memorandum of -etitioners"


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ownership" occupied or possessed by &++sG&-s" by themselves or through their ancestors" communally orindividually since time immemorial" continuously to the present e'cept when interrupted by war" forcemaeure or displacement by force" deceit" stealth or as a conse,uence of government proects or anyother voluntary dealings entered into by government and private individualsGcorporations" and which arenecessary to ensure their economic" social and cultural welfare. &t shall include ancestral lands" forests"pasture" residential" agricultural" and other lands" individually owned whether alienable and disposable orotherwise" hunting grounds" burial grounds" worship areas" bodies of water" mineral and other naturalresources" and lands which may no longer be e'clusively occupied by &++sG&-s but from which theytraditionally had access to for their subsistence and traditional activities" particularly the home ranges of&++sG&-s who are still nomadic andGor shifting cultivators.

955A:2ection E. &ndigenous +oncept of Ownership)) &ndigenous concept of ownership sustains the view thatancestral domains and all resources found therein shall serve as the material bases of their culturalintegrity. The indigenous concept of ownership generally holds that ancestral domains are the &++sG&-sprivate but community property which belongs to all generations and therefore cannot be sold" disposedor destroyed. &t likewise covers sustainable traditional resource rights.

958F:2ection 7. *ights to Ancestral Domains.The rihts o' o%nershipand possession of &++sG&-s to theirancestral domains shall be recogni=ed and protected. 2uch rights shall includeD

$a% *ight of $)nership. The riht to clai# o%nershipover lands" bodies of water traditionally and

actually occupied by &++sG&-s" sacred places" traditional hunting and fishing grounds" and allimprovements made by them at any time within the domains;

$b% *ight to Develop ands and 4atural *esources. 2ubect to 2ection E@ hereof" right to develop" controland use lands and territories traditionally occupied" owned" or used; to manage and conserve naturalresources within the territories and uphold the responsibilities for future generations; to benefit and sharethe profits from allocation and utili=ation of the natural resources found therein; the right to negotiate theterms and conditions for the e'ploration of natural resources in the areas for the purpose of ensuringecological" environmental protection and the conservation measures" pursuant to national and customarylaws; the right to an informed and intelligent participation in the formulation and implementation of anyproect" government or private" that will affect or impact upon the ancestral domains and to receive ustand fair compensation for any damages which they may sustain as a result of the proect; and the right toeffective measures by the government to prevent any interference with" alienation and encroachmentupon these rights; ' ' ' $1mphasis supplied.%

9585:2ection 8" rticle K&&" +onstitution.

9588:Tolentino" +ommentaries and urisprudence on the +ivil +ode of the -hilippines" 0ol. &&" p. B8 $5A6C%;see also rticles B87 and B86" +ivil +ode.

958C:Id." at BC.

958B:2ection E" 2 5@" EB ( 1d 78.

95CF:&bid. The facts of the case were discussed in #ian=a vs.


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same parcel of land was also claimed by an merican" .#. nited 2tates2upreme +ourt affirmed the decision of the -hilippine 2upreme +ourt and held that the indigenouspeoples were the rightful owners of the contested parcel of land" stating that the possession and workingby #ian=a" et al. of the mining claim in the -hilippine &slands for the time re,uired under the 2ection BE ofthe -hilippine ill of 5AF8 to establish the right to a patent" need not have been under a claim of title.

95C5:Memorandum of &ntervenors #lavier" et al." *ollo" p. A56.

95C8:rticle & of the *ecree of 2uperior +ivil Iovernment of anuary 8A" 56@B provided that The supremeownership of mines throughout the kingdom belong to the crown and the king. They shall not be e'ploitede'cept by persons who obtained special grant from this superior government and by those who maysecure it thereafter" subect to this regulation. $#nited 2tates" or of said&slandsD Provided" That when on any lands in said &slands entered and occupied as agriculturallands under the provisions of this ct" but not patented" mineral deposits have been found" the working ofsuch mineral deposits is hereby forbidden until the person" association" or corporation who or which hasentered and is occupying such lands shall have paid to the Iovernment of said &slands such additionalsum or sums as will make the total amount paid for the mineral claim or claims in which said deposits arelocated e,ual to the amount charged by the Iovernment for the same as mineral claims.

Other natural resources such as water and forests were similarly regarded as belonging to the 2tateduring both the 2panish and merican rule in the -hilippines" vi=D
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rticle CC of the (aw of 3aters of ugust C" 56@@ defined waters of public ownership as $5% the watersspringing continuously or intermittently from lands of the public domain; $8% the waters of rivers; and $C%the continuous or intermittent waters of springs and creeks running through their natural channels.

rticle 5 of the same law statesD

The following are also part of the national domain open to public useD

5. The coasts or maritime frontiers of the -hilippine territory with their coves" inlets" creeks" roadsteads"bays and ports

8. The coast of the sea" that is" the maritime =one encircling the coasts" to the full width recogni=ed byinternational law. The state provides for and regulates the police supervision and the uses of this =one aswell as the right of refuge and immunity therein" in accordance with law and international treaties.

3ith respect to forests" there are references made regarding 2tate)ownership of forest lands in 2upreme+ourt decisions $2ee *irector of #orestry vs. Muno=" 8C 2+


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owned by the 2tate. with the e'ception of agricultural lands" all other natural resources shall not bealienated. The e'ploration" development" and utili=ation of natural resources shall be under the full controland supervision of the 2tate. The 2tate may directly undertake such activities" or it may enter into co)production" oint venture" or production)sharing agreements with #ilipino citi=ens" or corporations andassociations at least sity per centumof whose capital is owned by such citi=ens. 2uch agreements maybe for a period not e'ceeding twenty)five years" renewable for not more than twenty)five years" and undersuch rights for irrigation" water supply" fisheries" or industrial uses other than the development of waterpower" beneficial use may be the measure and limit of the grant.

95C6:2ection 7. *ights to Ancestral Domains.The rights of ownership and possession of &++sG&-s to theirancestral domains shall be recogni=ed and protected. 2uch rights shall includeD

' ' '

b% *ight to Develop ands and 4atural *esources.)) 2ubect to 2ection E@ hereof" right to develop" controland use lands and territories traditionally occupied" owned" or used; to #anae and consere nat!ralreso!rceswithin the territories and uphold the responsibilities for future generations; to (ene'it andshare the pro'its 'ro# allocation and !tili)ation o' the nat!ral reso!rces 'o!nd therein9 the riht toneotiate the ter#s and conditions 'or the e*ploration o' nat!ral reso!rces in the areas for thepurpose of ensuring ecological" environmental protection and the conservation measures" pursuant tonational and customary laws; the right to an informed and intelligent participation in the formulation and

implementation of any proect" government or private" that will affect or impact upon the ancestraldomains and to receive ust and fair compensation for any damages which they may sustain as a result ofthe proect; and the right to effective measures by the government to prevent any interference with"alienation and encroachment upon these rights;

95CA:2ection E7. 4atural *esources )ithin Ancestral Domains.))The &++sG&-s shall have priority rights in theharvesting" e'traction" development or e'ploitation of any natural resources within the ancestraldomains. non)member of the &++sG&-s concerned may be allowed to take part in the development andutili=ation of the natural resources for a period of not e'ceeding twenty)five $8E% years renewable for notmore than twenty)five $8E% yearsD -rovided" That a formal and written agreement is entered into with the&++sG&-s concerned or that the community" pursuant to its own decision making process" has agreed toallow such operationD -rovided" finally" That the 4+&- may e'ercise visitorial powers and take appropriateaction to safeguard the rights of the &++sG&-s under the same contract.

95BF:2ection EA.&ertification Precondition) ll departments and other governmental agencies shallhenceforth be strictly enoined from issuing" renewing" or granting any concession" license or lease" orentering into any production)sharing agreement" without prior certification from the 4+&- that the areaaffected does not overlap with any ancestral domain. 2uch certification shall only be issued after a field)based investigation is conducted by the ncestral *omains Office of the area concernedD Provided" Thatno certi'ication shall (e iss!ed ($ the N"IP %itho!t the 'ree and prior in'or#ed and %rittenconsent o' Indieno!s peoples concernedD Provided" further" That no department" government agencyor government)owned or controlled corporation may issue new concession" license" lease" or productionsharing agreement while there is a pending application for a +*TD -rovided" finally" That the &++sG&-sshall have the right to stop or suspend" in accordance with this ct" any proect that has not satisfied there,uirement of this consultation process.

95B5:2ection E6. 2nvironmental &onsiderations.) ncestral domains or portions thereof" which are found tobe necessary for critical watersheds" mangroves" wildlife sanctuaries" wilderness" protected areas" forestcover" or reforestation as determined by appropriate agencies with the full participation of the &ndigenouspeoples concerned shall be maintained" managed and developed for such purposes. The Indieno!speoples concerned shall (e ien the responsi(ilit$ to #aintain, deelop, protect and conseres!ch areas %ith the '!ll and e''ectie assistance o' oern#ent aencies. 2hould the &ndigenouspeoples decide to transfer the responsibility over the areas" said decision must be made in writing. Theconsent of the &ndigenous peoples should be arrived at in accordance with its customary laws withoutpreudice to the basic re,uirements of e'isting laws on free and prior informed consentD -rovided" Thatthe transfer shall be temporary and will ultimately revert to the &ndigenous peoples in accordance with theprogram for technology transfer; -rovided" further" That no &ndigenous peoples shall be displaced or
http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref138http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref138http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref139http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref139http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref140http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref140http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref141http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref141http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref138http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref139http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref140http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385_kapunan.htm#_ednref141


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relocated for the purpose enumerated under this section without the written consent of the specificpersons authori=ed to give consent.

95B8:+iting 2ection 8" rticle K&& of the +onstitution.

95BC:Memorandum of -etitioners" &d." at 6BF)6B5.

95BB:2tate v. (athrop" AC Ohio 2t 7A" 558 41 8FA" cited in 5@ m ur 8d" +onstitutional (aw" 5FF.

95BE:Old 3ayne Mutual (ife ssn. v. Mc*onough" 8FB >2 6" E5 ( 1d CBE" cited in 5@ m ur 8d+onstitutional (aw" 5FF.

95B@:Third paragraph" 2ection 8" rticle K&&" +onstitution

The +ongress may" by law" allow small scale)utili=ation of natural resources by #ilipino citi=ens" as well ascooperative fish farming" with priority to subsistence fishermen and fishworkers in rivers" lakes" bays" andlagoons.

95B7:2ection @" rticle K&&&" +onstitution

The 2tate shall apply the principles of agrarian reform or stewardship" whenever applicable in accordancewith law" in the disposition and utili=ation of other natural resources" including lands of the public domainunder lease or concession suitable to agriculture" subect to prior rights" homestead rights of small

settlers" and the rights of the indigenous communities to their ancestral lands.

The 2tate may resettle landless farmers and farmworkers in its own agricultural estates which shall bedistributed to them in the manner provided by law.

95B6:2ection 7" rticle K&&&" +onstitution

The 2tate shall protect the rights of subsistence fishermen" especially of local communities" to thepreferential use of the communal marine and fishing resources" both inland and offshore. &t shall providesupport to such fishermen through appropriate technology and research" ade,uate financial" production"and marketing assistance" and other services. The 2tate shall also protect" develop" and conserve suchresources. The protection shall e'tend to offshore fishing grounds of subsistence fishermen againstforeign intrusion. #ishworkers shall receive a ust share from their labor in the utili=ation of marine andfishing resources.

95BA:ower v. ig Horn +anal ssn. $3yo% CF7 -8d EAC" cited in 5@ m ur 8d +onstitutional (aw" 5FF.

95EF:


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95E6:-residential *ecree 4o. 55E5 $5A75%.

95EA:-residential *ecree 4o. 5E6@ $5A76% and *14< dministrative Order 4o. C7 $5AA@%.

95@F:


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957E:Memorandum of -etitioners"

separate opinion justice kapunan

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