Corollary Issues
The first corollary issue raised by petitioners is whether IPRA violates Section 1, Article III of the Constitution, which provides that "no person shall be deprived of life, liberty, or property without due process of law, nor shall any person be deprived the equal protection of the laws."
Petitioners maintain that the broad definition of ancestral lands and ancestral domains under Section 3(a) and 3(b) of IPRA includes private lands. They argue that the inclusion of private lands in the ancestral lands and ancestral domains violates the due process clause.[162] Petitioners' contention is erroneous.
Sections 3(a) and 3(b) expressly provide that the definition of ancestral lands and ancestral domains are "subject to Section 56," which reads:
Sec. 56. Existing Property Rights Regimes. - Property rights within the ancestral domains already existing and/or vested upon effectivity of this Act, shall be recognized and protected.
Petitioners, however, contend that Section 56 aims to protect only the vested rights of indigenous peoples, but not those who are not members of such communities. Following their interpretation, IPRA, under Section 56, recognizes the rights of indigenous peoples to their ancestral lands and ancestral domains, subject to the vested rights of the same communities to such ancestral lands and ancestral domains. Such interpretation is obviously incorrect.
The "property rights" referred to in Section 56 belong to those acquired by individuals, whether indigenous or non-indigenous peoples. Said provision makes no distinction as to the ethnic origins of the ownership of these "property rights." The IPRA thus recognizes and respects "vested rights" regardless of whether they pertain to indigenous or non-indigenous peoples. Where the law does not distinguish, the courts should not distinguish.[163] What IPRA only requires is that these "property rights" already exist and/or vested upon its effectivity.
Further, by the enactment of IPRA, Congress did not purport to annul any and all Torrens titles within areas claimed as ancestral lands or ancestral domains. The statute imposes strict procedural requirements for the proper delineation of ancestral lands and ancestral domains as safeguards against the fraudulent deprivation of any landowner of his land, whether or not he is member of an indigenous cultural community. In all proceedings for delineation of ancestral lands and ancestral domains, the Director of Lands shall appear to represent the interest of the Republic of the Philippines.[164] With regard to ancestral domains, the following procedure is mandatory: first, petition by an indigenous cultural community, or motu proprio by the NCIP; second, investigation and census by the Ancestral domains Office ("ADO") of the NCIP; third, preliminary report by the ADO; fourth, posting and publication; and lastly, evaluation by the NCIP upon submission of the final report of the ADO.[165] With regard to ancestral lands, unless such lands are within an ancestral domain, the statute imposes the following procedural requirements: first, application; second, posting and publication; third, investigation and inspection by the ADO; fourth, delineation; lastly, evaluation by the NCIP upon submission of a report by the ADO.[166] Hence, we cannot sustain the arguments of the petitioners that the law affords no protection to those who are not indigenous peoples.
Neither do the questioned sections of IPRA on the composition and powers and jurisdiction of the NCIP[167] and the application of customary law,[168] violate the due process clause of the Constitution.
Petitioners point out that IPRA provides that the NCIP shall be composed exclusively of members of indigenous peoples,[169] and that the NCIP shall have jurisdiction over all claims and disputes involving indigenous peoples,[170] including even disputes between a member of such communities and one who is not a member, as well as over disputes in the delineation of ancestral domains.[171] Petitioners clarify that they do not claim that the members of the NCIP are incapable of being fair and impartial judges. They merely contend that the NCIP will not appear to be impartial, because a party who is not a member of an indigenous cultural community "who must defend his case against [one who is] before judges who are all members of [indigenous peoples] cannot but harbor a suspicion that they do not have the cold neutrality of an impartial judge."[172]
In addition, petitioners claim that IPRA prescribes that customary laws shall be applied first in disputes involving property, succession and land,[173] and that such laws shall likewise be used in disputes involving indigenous peoples.[174] They assert that "[w]hen the dispute involves a member of an [indigenous cultural community and another who is not], a resolution of such a dispute based on customary laws. . . would clearly be a denial of due process. . . [because those who are not indigenous peoples] do not know what these customary laws are."[175]
Petitioners' concerns are unfounded. The fact that the NCIP is composed of members of the indigenous peoples does not mean that it (the NCIP) is incapable, or will appear to be so incapable, of delivering justice to the non-indigenous peoples. A person's possession of the trait of impartiality desirable of a judge has nothing to do with his or her ethnic roots. In this wise, the indigenous peoples are as capable of rendering justice as the non-indigenous peoples for, certainly, the latter have no monopoly of the concept of justice.
In any case, there are sufficient checks in the law against any abuse by the NCIP of its quasi-judicial powers. Section 67 states that the decision of the NCIP shall be appealable to the Court of Appeals by petition for review. The regular remedies under our rules of procedure are likewise available to any party aggrieved by the decision of the NCIP.
Anent the use of customary laws in determining the ownership and extent of ancestral domains, suffice it to say that such is allowed under paragraph 2, Section 5 of Article XII of the Constitution. Said provision states, "The Congress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and extent of the ancestral domains." Notably, the use of customary laws under IPRA is not absolute, for the law speaks merely of primacy of use.[176] The IPRA prescribes the application of such customary laws where these present a workable solution acceptable to the parties, who are members of the same indigenous group. This interpretation is supported by Section 1, Rule IX of the Implementing Rules which states:
RULE IX. JURISDICTION AND PROCEDURES FOR ENFORCEMENT OF RIGHTS
Section 1. Primacy of Customary Law. All conflicts related to ancestral domains and lands, involving ICCs/IPs, such as but not limited to conflicting claims and boundary disputes, shall be resolved by the concerned parties through the application of customary laws in the area where the disputed ancestral domain or land is located.
All conflicts related to the ancestral domains or lands where one of the parties is a non-ICC/IP or where the dispute could not be resolved through customary law shall be heard and adjudicated in accordance with the Rules on Pleadings, Practice and Procedures Before the NCIP to be adopted hereafter. (Emphasis supplied.)
The application of customary law is limited to disputes concerning property rights or relations in determining the ownership and extent of the ancestral domains,[177] where all the parties involved are members of indigenous peoples,[178] specifically, of the same indigenous group. It therefore follows that when one of the parties to a dispute is a non-member of an indigenous group, or when the indigenous peoples involved belong to different groups, the application of customary law is not required.
Like any other law, the objective of IPRA in prescribing the primacy of customary law in disputes concerning ancestral lands and domains where all parties involved are indigenous peoples is justice. The utilization of customary laws is in line with the constitutional policy of recognizing the application thereof through legislation passed by Congress.
Furthermore, the recognition and use of customary law is not a novel idea in this jurisdiction. Under the Civil Code, use of customary law is sanctioned, as long as it is proved as a fact according to the rules of evidence,[179] and it is not contrary to law, public order or public policy.[180] Moreover, the Local Government Code of 1991 calls for the recognition and application of customary laws to the resolution of issues involving members of indigenous peoples. This law admits the operation of customary laws in the settling of disputes if such are ordinarily used in barangays where majority of the inhabitants are members of indigenous peoples.[181]
B. Section 1, Part II, Rule VII of the Implementing Rules of IPRA does not infringe upon the President's power of control over the Executive Department.
The second corollary issue is whether the Implementing Rules of IPRA violate Section 17, Article VII of the Constitution, which provides that:
The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
The assailed provision of the Implementing Rules provides:
Rule VII. The National Commission on Indigenous Peoples (NCIP)x x x
Part II: NCIP as an Independent Agency Under the Office of the President
Section 1. The NCIP is the primary agency of government for the formulation and implementation of policies, plans and programs to recognize, promote and protect the rights and well-being of indigenous peoples. It shall be an independent agency under the Office of the President. As such, the administrative relationship of the NCIP to the Office of the President is characterized as a lateral but autonomous relationship for purposes of policy and program coordination. This relationship shall be carried out through a system of periodic reporting. Matters of day-to-day administration or all those pertaining to internal operations shall be left to the discretion of the Chairperson of the Commission, as the Chief Executive Officer.
Petitioners asseverate that the aforecited rule infringes upon the power of control of the President over the NCIP by characterizing the relationship of the NCIP to the Office of the President as "lateral but autonomous...for purposes of policy and program coordination."
Although both Section 40 of the IPRA and Section 1, Part II, Rule VII of the Implementing Rules characterize the NCIP as an independent agency under the Office of the President, such characterization does not remove said body from the President's control and supervision.
The NCIP has been designated under IPRA as the primary government agency responsible for the formulation and implementation of policies, plans and programs to promote and protect the rights and well being of the indigenous peoples and the recognition of their ancestral domain as well as their rights thereto.[182] It has been granted administrative,[183] quasi-legislative[184] and quasi-judicial powers[185] to carry out its mandate. The diverse nature of the NCIP's functions renders it impossible to place said agency entirely under the control of only one branch of government and this, apparently, is the reason for its characterization by Congress as an independent agency. An "independent agency" is defined as an administrative body independent of the executive branch or one not subject to a superior head of department, as distinguished from a "subordinate agency" or an administrative body whose action is subject to administrative review or revision.[186]
That Congress did not intend to place the NCIP under the control of the President in all instances is evident in the IPRA itself, which provides that the decisions of the NCIP in the exercise of its quasi-judicial functions shall be appealable to the Court of Appeals,[187] like those of the National Labor Relations Commission (NLRC) and the Securities and Exchange Commission (SEC). Nevertheless, the NCIP, although independent to a certain degree, was placed by Congress "under the office of the President" and, as such, is still subject to the President's power of control and supervision granted under Section 17, Article VII of the Constitution[188] with respect to its performance of administrative functions, such as the following: (1) the NCIP must secure the President's approval in obtaining loans to finance its projects;[189] (2) it must obtain the President's approval for any negotiation for funds and for the acceptance of gifts and/or properties in whatever from and from whatever source;[190] (3) the NCIP shall submit annual reports of its operations and achievements to the President, and advise the latter on all matters relating to the indigenous peoples;[191] and (4) it shall exercise such other powers as may be directed by the President.[192] The President is also given the power to appoint the Commissioners of the NCIP[193] as well as to remove them from office for cause motu proprio or upon the recommendation of any indigenous community.[194]
To recapitulate:
(1) The provisions of the IPRA (specifically Sections 3, paragraphs (a) and (b), 5, 6, 7, and 8) affirming the ownership by the indigenous peoples of their ancestral lands and domains by virtue of native title do not diminish the State's ownership of lands of the public domain, because said ancestral lands and domains are considered as private land, and never to have been part of the public domain, following the doctrine laid down in Cariño vs. Insular Government;[195]
(2) The constitutional provision vesting ownership over minerals, mineral lands and other natural resources in the State is not violated by Sections 3, 5, 7, 56, 57, 58 and 59 of the IPRA which grant certain rights to the indigenous peoples over the natural resources found within the ancestral domains, e.g., to benefit from and share in the profits from the allocation and utilization of the same, as well as priority rights in the harvesting, extraction, development or exploitation thereof. The State retains full control over the exploration, development and utilization of natural resources even with the grant of said rights to the indigenous peoples, through the imposition of requirements and conditions for the utilization of natural resources under existing laws, such as the Small-Scale Mining Act of 1991[196]and the Philippine Mining Act of 1995.[197] Moreover, the rights granted to indigenous peoples for the utilization of natural resources within their ancestral domains merely amplify what has been earlier granted to them under the aforesaid laws;
(3) While the IPRA recognizes the rights of indigenous peoples with regard to their ancestral lands and domains, it also protects the vested rights of persons, whether indigenous or non-indigenous peoples, who may have acquired rights of ownership lands or rights to explore and exploit natural resources within the ancestral lands and domains;[198]
(4) The Due Process Clause of the Constitution is not violated by the provisions (Sections 40, 51-54, 62, 63, 65 and 66) of the IPRA which, among others, establish the composition of the NCIP, and prescribe the application of customary law in certain disputes involving indigenous peoples. The fact the NCIP is composed wholly of indigenous peoples does not mean that it is incapable of being impartial. Moreover, the use of customary laws is sanctioned by paragraph 2, Section 5 of Article XII of the Constitution; and
(5) The provision of the Implementing Rules characterizing the NCIP as an independent agency under the Office of the President does not infringe upon the President's power of control under Section 17, Article VII of the Constitution, since said provision as well as Section 40 of the IPRA expressly places the NCIP under the Office of the President, and therefore under the President's control and supervision with respect to its administrative functions. However, insofar as the decisions of the NCIP in the exercise of its quasi-judicial powers are concerned, the same are reviewable by the Court of Appeals, like those of the NLRC and the SEC.
In view of the foregoing, I vote to DISMISS the petition.
[1] Teehankee vs. Rovira, 75 Phil. 634 (1945); San Miguel Corporation vs. Avelino, 89 SCRA 69 (1979); Phil. Long Distance Telephone Co. vs. Collector of Internal Revenue, 90 Phil 674 (1952).
[2] In re Guarina, 24 Phil. 37 (1913).
[3] In Philippine Colonial history, the term indio applied to indigenous throughout the vast Spanish empire. India was a synonym for all of Asia east of the Indus River. Even after it became apparent that the explorer Christopher Columbus was not able to reach territories lying off the east coast of Asia, the Spanish persisted in referring to all natives within their empire as los Indios. (Owen J. Lynch, Jr., THE PHILIPPINE COLONIAL DICHOTOMY: Attraction and Disenfranchisement, 63 PL J 112 [1988] citing R. BERKHOFER, THE WHITE MAN'S INDIAN: IMAGES OF THE AMERICAN INDIAN FROM COLUMBUS TO THE PRESIDENT 5 [1979].
[4] WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1976), p. 1151.
[5] Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy, 92 The American Journal of International Law 414, 419 (1998) citing Jose Martinez Cobo, Study of the Problem of Discrimination against indigenous population, UN Doc. E/CN.4/Sub. 2/1986/ 7/ Add. 4, paras. 379-80.
[6] Ibid. This definition is criticized for taking the potentially limited, and controversial view of indigenous peoples by requiring "historical continuity with pre-invasion and pre-colonial societies that developed on their territories."
[7] 4 RECORD OF THE CONSTITUTIONAL COMMISSION 34.
[8] Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 680 (1919).
[9] Hearing before the Committee on the Philippines, United States Senate, Sixty-Third Congress, Third Session on HR 18459, pp. 346, 351. Quoted in Rubi at 686.
[10] United States President McKinleys' Instruction to the Philippine Commission, April 7, 1900, quoted in Rubi at 680.
[11] US v. Tubban, 29 Phil. 434, 436 (1915).
[12] See Owen J. Lynch, Jr., INVISIBLE PEOPLES AND A HIDDEN AGENDA: The Origins of Contemporary Philippine Land Laws (1900-1913), 63 PLJ 249 (1988).
[13] For an introduction to the chasm that exists between Philippine Law and Indigenous Custom Law, see Owen J. Lynch, Jr., Native Title, Private Right and Tribal Land Law: An Introductory Survey 52 PLJ 268 (1982); and the Philippine Indigenous Law Collection: An Introduction and Preliminary Bibliography, 58 PLJ 457 (1983), by the same author.
[14] See RENATO CONSTANTINO, THE PHILIPPINES: A PAST REVISITED (1975), pp. 26-41; TEODORO AGONCILLO, A HISTORY OF THE FILIPINO PEOPLE, 8th ed., pp. 5, 74-75.
[15] Response of Rep. Gregorio A. Andolana to the interpellation of Rep. John Henry R. Osmeña on ouse Bill No. 9125, Journal of August 20 and 21, 1997 of the House of Representatives, p.20.
[16] Philippines Yearbook (1998 ed.), p. 366.
[17] Article II of the Constitution, entitled State Principles and Policies.
[18] Article XII of the Constitution, entitled National Economy and Patrimony.
[19] Article XIII of the Constitution, entitled Social Justice and Human Rights.
[20] Ibid.
[21] Article XIV of the Constitution, entitled Education, Science, Technology, Arts, Culture, and Sports.
[22] Article XVI of the Constitution, entitled General Provisions.
[23] SECTION 2. Declaration of State Policies . - The State shall recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder enumerated within the framework of the Constitution:
a) The State shall recognize and promote the rights of ICCs/IPs within the framework of national unity and development;
b) The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic, social and cultural well being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain;
c) The State shall recognize, respect and protect the rights of ICCs/IPs to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national laws and policies;
d) The State shall guarantee that members of the ICCs/IPs regardless of sex, shall equally enjoy the full measure of human rights and freedoms without distinction or discrimination;
e) The State shall take measures, with the participation of the ICCs/IPs concerned, to protect their rights and guarantee respect for their cultural integrity, and to ensure that members of the ICCs/IPs benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population; and
f) The State recognizes its obligations to respond to the strong expression of the ICCs/IPs for cultural integrity by assuring maximum ICC/IP participation in the direction of education, health, as well as other services of ICCs/IPs, in order to render such services more responsive to the needs and desires of these communities.
Towards these ends, the State shall institute and establish the necessary mechanisms to enforce and guarantee the realization 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 their ancestral domains.
[24] See Sections 13-20, R.A. 8371.
[25] See Sections 21-37, R.A. 8371.
[26] See Sections 4-12, R.A. 8371.
[27] See Sections 38-50, R.A. 8371.
[28] Dumlao v. COMELEC, 95 SCRA 392, 400 (1980), citing People vs. Vera, 65 Phil. 56 (1937).
[29] Subic Bay Metropolitan Authority v. COMELEC, 262 SCRA 492, 513 (1996).
[30] Board of Optometry v. Colet, 260 SCRA 88, 104 (1996).
[31] Muskrat v. United States, 219 US 346, 362 (1913).
[32] WEBSTERS'S THIRD NEW INTERNATIONAL DICTIONARY, 1976, p. 497.
[33] United States v. Freuhauf, 365 US 146 (1961).
[34] Association of Small Landowners v. Secretary of Agrarian Reform, 175 SCRA 343, 364 (1989); Joya v. PCGG, 225 SCRA 568 (1993).
[35] People v. Vera, 65 Phil. 56, 89 (1937).
[36] Lozada v. COMELEC, 120 SCRA 337, 342 (1983).
[37] US v. Richardson, 418 US 166, 194 S Ct 2940, 41 L Ed 2d 678 (1974).
[38] Kilosbayan v. Guingona, 232 SCRA 110, 135 (1994), citing, among others, Philconsa v. Gimenez, 15 SCRA 479 (1965); CLU V. Executive Secretary, 194 SCRA 317 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Osmena v. COMELEC, 199 SCRA 750 (1991); Basco v. PAGCOR, 197 SCRA 52 (1991); Carpio v. Executive Secretary, 206 SCRA 290 (1992).
In Kilosbayan v. Morato (250 SCRA 130 [1995]) the Court discoursed on the rule on standing as follows: taxpayers may sue on the claim of illegal disbursement of funds, or to assail the constitutionality of a tax measure; voters may question the validity of election laws; citizens may raise constitutional questions of transcendental importance which must be settled early; and, legislators may question the validity of official acts which infringe their prerogatives.
[39] Araneta v. Dinglasan, 84 Phil. 368, 373 (1949).
[40] Assn. of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175 SCRA 343, 364-365 (1989).
[41] 16 Phil. 366 (1910), citing HIGH, EXTRAORDINARY LEGAL REMEDIES.
[42] Id., at 371.
[43] Id., at 374-375.
[44] 136 SCRA 27, 37 (1985).
[45] 177 SCRA 374, 383 (1989).
[46] 224 SCRA 792 (1993).
[47] Id., at 805.
[48] Ibid.
[49] Philconsa v. Mathay, 18 SCRA 300, 306 (1966).
[50] Philconsa v. Gimenez, 15 SCRA 479, 487 (1965), citing 11 Am Jur 761.
[51] Sanidad v. COMELEC, 73 SCRA 333, 358-359 (1976); Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Tan v. Macapagal, 43 SCRA 677, 680 (1972).
[52] Section 79. Appropriations.-- The amount necessary to finance the initial implementation of this Act shall be charged against the current year's appropriation of the ONCC and the OSCC. Thereafter, such sums as may be necessary for its continued implementation shall be included in the annual General Appropriations Act.
[53] Section 74. Merger of ONCC/OSCC.--The Office for Northern Cultural Communities (ONCC) and the Office for Southern Cultural Communities (OSCC), created under Executive Order Nos. 122-B and 122-C respectively, are hereby merged as organic offices of the NCIP and shall continue to function under a revitalized and strengthened structure to achieve the objectives of the NCIP x x x.
[54] Section 2, Rule 65, 1997 RULES OF CIVIL PROCEDURE.
[55] Section 3, Rule 65, 1997 RULES OF CIVIL PROCEDURE.
[56] Article VIII of the Constitution states:
Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
x x x
Batas Pambansa Blg. 129 (B.P. 129), as amended, provides:
Sec. 9. Jurisdiction.--The Court of Appeals shall exercise:
(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;
x x x.
Sec. 21. Original jurisdiction in other cases.-- Regional Trial Courts shall exercise original jurisdiction:
(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; and
(2) In actions affecting ambassadors and other public ministers and consuls.
[57] Tano vs. Socrates, 278 SCRA 154, 173-174 (1997).
[58] 172 SCRA 415 (1989).
[59] Id., at 424.
[60] Section 7. Rights to Ancestral Domains.--The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include:
(a) Right of Ownership. - The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional
(b) hunting and fishing grounds, and all improvements made by them at any time within the domains;
x x x
[61] Section 3(l) Native Title - refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest; x x x
Section 3(p) Time Immemorial - refers to a period of time when as far back as memory can go, certain ICCs/IPs are known to have occupied, possessed in the concept of owners, and utilized a defined territory devolved to them, by operation of customary law or inherited from their ancestors, in accordance with their customs and traditions.
[62] Section 3(b) Ancestral Lands - Subject to Section 56 hereof, refers to land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors-in-interest, under claims of individual or traditional group ownership, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects or any other voluntary dealings entered into by the government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots;
[63] Section 3(a) Ancestral Domains - Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas and natural resources therein, held under a claim of ownership, occupied or possessed by Indigenous peoples, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by the government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other resources, and lands which may no longer be exclusively be occupied by Indigenous peoples but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.
[64] Ibid.
[65] Hebron v. Reyes, 104 Phil. 175 (1958); San Miguel Corporation v. Avelino, 89 SCRA 69 (1979).
[66] In re Guarina, 24 Phil 37 (1913).
[67] See Lee Hong Hok vs. David, 48 SCRA 372 (1972).
[68] PEÑA, REGISTRATION OF LAND TITLES AND DEEDS, 1994 rev. ed., p. 15.
[69] 1 BOUVIER'S LAW DICTIONARY, 3rd revision, p. 1759.
[70] BLACK'S LAW DICTIONARY, 6th ed., p. 1282.
[71] 76 CORPUS JURIS SECUNDUM, citing Hart v. Burnett, 15 Cal. 530, 566.
[72] WASHBURN, p. 44; see also WILLIAMS, PRINCIPLES OF THE LAW ON REAL PROPERTY, 6th ed. (1886), p.2; BIGELOW, p. 2.
[73] WARVELLE, ABSTRACTS AND EXAMINATION OF TITLE TO REAL PROPERTY (1907), p.18.
[74] 1 DICTIONARY OF ENGLISH LAW (Jowitt, ed.), p. 797.
[75] 41 Phil. 935, 212 U.S. 449, 53 L Ed. 594 (1909).
[76] Cariño vs. Insular Government, 7 Phil. 132 (1906). The Philippine Supreme Court in this case held that in the Philippines, there is no conclusive presumption of a grant of title to land from the Government founded merely upon long possession of the same by the applicant.
[77] Cariño vs. Insular Government, supra note 75, at 941.
[78] Section 10, Philippine Bill of 1902.
[79] 75 Phil 890 (1946).
[80] Id., at 892.
[81] Memorandum of Petitioners, Rollo, p. 861.
[82] Section 3, Article XII, CONSTITUTION.
[83] Under the Treaty of Tordesillas, the world was divided between Spain and Portugal, with the former having exclusive power to claim all lands and territories west of the Atlantic Ocean demarcation line (Lynch, The Legal Bases of Philippine Colonial Sovereignty, 62 Phil L J 279, 283 [1987]).
[84] See AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW, 5th ed., 142-143.
[85] See CRUZ, INTERNATIONAL LAW, 1996 ed., pp. 106-107.
[86] Cariño v. Insular Government, supra note 75, at 939.
This point finds significance in light of the distinction between sovereignty and dominion. Sovereignty is the right to exercise the functions of a State to the exclusion of any other State (Case Concerning the Island of Las Palmas [1928], UNRIAA II 829, 838). It is often referred to as the power of imperium, which is defined as the government authority possessed by the State (BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY Vol. 2, p. 419). On the other hand, dominion, or dominium, is the capacity of the State to own or acquire property such as lands and natural resources.
Dominium was the basis for the early Spanish decrees embracing the theory of jura regalia. The declaration in Section 2, Article XII of the 1987 Constitution that all lands of the public domain are owned by the State is likewise founded on dominium (Ibid.). If dominium, not imperium, is the basis of the theory of jura regalia, then the lands which Spain acquired in the 16th century were limited to non-private lands, because it could only acquire lands which were not yet privately-owned or occupied by the Filipinos. Hence, Spain acquired title only over lands which were unoccupied and unclaimed, i.e., public lands.
[87] PHELAN, THE HISPANIZATION OF THE PHILIPPINES: SPANISH AIMS AND FILIPINOS RESPONSES, 1565-1700 (1959), pp. 8-9.
[88] Cariño vs. Insular Government, supra note 75, at 943.
[89] Book 4, Title 12, Law 9, decreed by Philip II, 1 June 1594. We order that grants of farms and lands to Spaniards be without injury to the Indians and that those which have been granted to their loss and injury, be returned to the lawful owners.
Book 4, Title 12, Law 14. We having acquired full sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of grant be restored to us according as they belong to us, in order that x x x after distributing to the natives what may be necessary for tillage and pasteurage, confirming them in what they now have and giving them more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose of as we wish. [Quoted in Valenton v. Murciano, 3 Phil. 537, 542-543 (1904).] (Emphasis supplied.)
Book 6, Title 1, Law 15, decreed by King Philip II, at Madrid, 7 November 1574. We command that in the Philippine Islands the Indians not be removed from one to another settlement by force and against their will.
Book 6, Title 1, Law 23, otherwise known as Ordinance 10 of 1609 decreed by Philip III. It is right that time should be allowed the Indians to work their own individual lands and those of the community.
Book 6, Title 1, Law 32, decreed by Philip II, 16 April 1580. We command the Viceroys, Presidents, and Audiencias that they see to it that the Indians have complete liberty in their dispositions.
Royal Cedula of October 15, 1754. Where such possessors shall not be able to produce title deeds it shall be sufficient if they shall show that ancient possession, as a valid title by prescription; x x x. [Quoted in Valenton v. Murciano, supra, at 546.] (Emphasis supplied.)
[90] Article 6 of the royal decree of June 25, 1880, quoted in Valenton v. Murciano, supra note 89 at 549.
[91] Cariño v. Insular Government, supra note 75, at 944.
[92] Memorandum of Petitioners, par. 3.4, Rollo, pp. 845-846.
[93] The Treaty of Paris reads in part:
Article III. Spain cedes to the United States the archipelago known as the Philippine Islands, x x x.
The United States will pay to Spain the sum of twenty million dollars, within three months after the exchange of the ratifications of the present treaty.
x x x
Article VIII. In conformity with the provisions of Articles One, Two, and Three of this treaty, Spain relinquishes in Cuba, and cedes in Porto Rico and other islands of the West Indies, in the Island of Guam, and in the Philippine Archipelago, all the buildings, wharves, barracks, forts, structures, public highways, and other immovable property which, in conformity with law, belong to the public domain and as such belong to the Crown of Spain.
And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, can not in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be.
[94] The statute reads in part:
Section 12. That all the property and rights which may have been acquired in the Philippine Islands under the treaty of peace with Spain, signed December tenth, eighteen hundred and ninety-eight, except such land or other property as shall be designated by the President of the United States for military and other reservations of the Government of the United States, are hereby placed under the control of the Government of said Islands, to be administered for the benefit of the inhabitants thereof, except as provided by this Act.
[95] McKinley's Instructions to the Second Philippine Commission, in MENDOZA, FROM MCKINLEY'S INSTRUCTIONS TO THE NEW CONSTITUTION: DOCUMENTS ON THE PHILIPPINE CONSTITUTIONAL SYSTEM (1978) p. 71.
[96] Id., at 65-75; Section 5, Philippine Bill of 1902.
[97] Solicitor General's Memorandum, Rollo, p. 668-669.
[98] Id, at 668.
[99] Section 1, Article XII, 1935 Constitution reads:
All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for another twenty five years, except as to water rights for irrigation, water supply, fisheries or industrial uses other than the development of water power, in which cases beneficial use may be the measure and limit of the grant.
[100] Central Azucarera Don Pedro v. Central Bank, 104 Phil 598 (1954).
[101] Sec. 5, Article XII. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.
The Congress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and extent of ancestral domains.
[102] See Memorandum of Petitioners, Rollo, pp. 863-864.
[103] SIBAL, PHILIPPINE LEGAL ENCYCLOPEDIA, p. 893.
[104] BLACK'S LAW DICTIONARY, 5th ed., p. 1189.
[105] Ibid.
[106] 4 RECORD OF THE CONSTITUTIONAL COMMISSION 32.
[107] Id., at 37.
[108] Solicitor General's Memorandum, Rollo, p. 665.
[109] Torres v. Tan Chim, 69 Phil 518 (1940); CIR v.Guerrero, 21 SCRA 180 (1967).
[110] 4 RECORD OF THE CONSTITUTIONAL COMMISSION 36.
[111] See 1 COOLEY, CONST., LIMITATIONS, 8th ed., pp. 127-129.
[112] See pp. 8-9 of this Opinion for the full text of the constitutional provisions mentioned.
[113] Section 1, Article XII provides:
The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives and similar collective organizations, shall be encouraged to broaden the base of their ownership. (Emphasis supplied.)
[114] BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS, p. 800, citing the sponsorship speech of Dr. Bernardo Villegas, Chairman of the Committee on National Economy and Patrimony.
[115] 4 RECORD OF THE CONSTITUTIONAL COMMISSION 34.
[116] Petition, Rollo, pp.18-19.
[117] Id., at 20.
[118] Section 3. Definition of Terms. --For Purposes of this Act, the following terms shall mean:
a) Ancestral Domains. --Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands, individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.
[119] Section 5. Indigenous Concept of Ownership-- Indigenous concept of ownership sustains the view that ancestral domains and all resources found therein shall serve as the material bases of their cultural integrity. The indigenous concept of ownership generally holds that ancestral domains are the ICCs/IPs private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource rights.
[120] Section 7. Rights to Ancestral Domains.--The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include:
(a) Right of Ownership. - The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;
(b) Right to Develop Lands and Natural Resources. - Subject to Section 56 hereof, right to develop, control and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights; x x x (Emphasis supplied.)
[121] Section 2, Article XII, CONSTITUTION.
[122] TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES, Vol. II, p. 42 (1983); see also Articles 427 and 428, Civil Code.
[123] Id., at 43.
[124] Section 5, R.A. 8371.
[125] Ibid.
[126] Should be Section 7. The Transcript of Session Proceedings of the deliberations of the Bicameral Conference Committee on National Cultural Communities regarding House Bill No. 9125 refers to Section 8 but the Committee was actually discussing Section 7 on Rights to Ancestral Domains.
[127] Transcript of Session Proceedings, Bicameral Conference Committee on National Cultural Communities, October 9, 1997, XIV-2.
[128] Sections 7 (b) and Section 57, R.A. 8371.
[129] 40 Phil. 1017 (1909), 215 US 16, 54 L Ed 72.
[130] Ibid. The facts of the case were discussed in Fianza vs. Reavies, (7 Phil. 610 [1909]) thus: Jose Fianza, et al., members of the Igorot tribe, claimed that he and his predecessors had, for more than fifty years prior to 1901, possessed a certain parcel of mineral land on which were found two gold mines. The same parcel of land was also claimed by an American, J.F. Reavies, who entered the land in 1901 and proceeded to locate mining claims according to the mining laws of the United States. The Philippine Supreme Court held that Fianza, et al. were the rightful owners of the mineral lands pursuant to Section 45 of the Philippine Bill of 1902 which in sum states that where a person have held or worked on their mining claims for a period equivalent to ten years, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto. On appeal, the United States Supreme Court affirmed the decision of the Philippine Supreme Court and held that the indigenous peoples were the rightful owners of the contested parcel of land, stating that the possession and working by Fianza, et al. of the mining claim in the Philippine Islands for the time required under the Section 45 of the Philippine Bill of 1902 to establish the right to a patent, need not have been under a claim of title.
[131] Memorandum of Intervenors Flavier, et al., Rollo, p. 918.
[132] Article I of the Decree of Superior Civil Government of January 29, 1864 provided that "The supreme ownership of mines throughout the kingdom belong to the crown and the king. They shall not be exploited except by persons who obtained special grant from this superior government and by those who may secure it thereafter, subject to this regulation." (FRANCISCO, PHILIPPINE LAWS ON NATURAL RESOURCES, 2nd ed. [1956], p. 14, citing the unpublished case of Lawrence v. Garduno, G.R. No. 19042.)
Article 2 of the Royal Decree of May 14, 1867 (the Spanish Mining Law), the law in force at the time of the cession of the Philippines to the United States contained a similar declaration, thus:
The ownership of the substances enumerated in the preceding article (among them those of inflammable nature) belongs to the state, and they cannot be disposed of without an authorization issued by the Superior Civil Governor.
The Spanish Civil Code contained the following analogous provisions affirming the State's ownership over minerals:
Art. 339. Property of public dominium is--
x x x
2. That belonging exclusively to the State which, without being of general public use, is employed in some public service, or in the development of the national wealth, such as walls, fortresses, and other works for the defense of the territory, and mines, until granted to private individuals.
Art. 350. The proprietor of land is the owner of the surface and of everything under it and may build, plant or excavate thereon, as he may see fit, subject to any existing easements and to the provisions of the Laws on Mines and Waters and to police regulations.
After the Philippines was ceded to Spain, the Americans continued to adhere to the concept of State-ownership of natural resources. However, the open and free exploration, occupation and purchase of mineral deposits and the land where they may be found were allowed under the Philippine Bill of 1902. Section 21 thereof stated:
Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and unsurveyed, are hereby declared to be free and open to exploration, occupation and purchase, and the land in which they are found, to occupation and purchase, by citizens of the United States, or of said Islands: Provided, That when on any lands in said Islands entered and occupied as agricultural lands under the provisions of this Act, but not patented, mineral deposits have been found, the working of such mineral deposits is hereby forbidden until the person, association, or corporation who or which has entered and is occupying such lands shall have paid to the Government of said Islands such additional sum or sums as will make the total amount paid for the mineral claim or claims in which said deposits are located equal to the amount charged by the Government for the same as mineral claims.
Other natural resources such as water and forests were similarly regarded as belonging to the State during both the Spanish and American rule in the Philippines, viz:
Article 33 of the Law of Waters of August 3, 1866 defined waters of public ownership as (1) the waters springing continuously or intermittently from lands of the public domain; (2) the waters of rivers; and (3) the continuous or intermittent waters of springs and creeks running through their natural channels.
Article 1 of the same law states:
The following are also part of the national domain open to public use:
1. The coasts or maritime frontiers of the Philippine territory with their coves, inlets, creeks, roadsteads, bays and ports
2. The coast of the sea, that is, the maritime zone encircling the coasts, to the full width recognized by international law. The state provides for and regulates the police supervision and the uses of this zone as well as the right of refuge and immunity therein, in accordance with law and international treaties.
With respect to forests, there are references made regarding State-ownership of forest lands in Supreme Court decisions (See Director of Forestry vs. Munoz, 23 SCRA 1183, 1198-1199 [1968]; Director of Lands vs. Abanzado, 65 SCRA 5, 11 [1975]; Mapa vs. Insular Government, 10 Phil. 175, 184 [1908]; Montano vs. Insular Government, 12 Phil 572, 584 [1909]).
The State's ownership over natural resources was embodied in the 1935, 1973 and 1987 Constitutions. Section 1, Article XII of the 1935 Constitution declared:
All agricultural, timber and mineral lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease or concession at the time of the inauguration of the Government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for another twenty -five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant.
Section 8, Article XIV of the 1973 Constitution provided:
All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of agricultural, industrial or commercial, residential, and resettlement lands of the public domain, natural resources shall not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than twenty-five years, except as to water rights for irrigation water supply, fisheries, or industrial uses other than the development of water power, in which cases, beneficial use may be the measure and limit of the grant.
[133] NOBLEJAS, PHILIPPINE LAW ON NATURAL RESOURCES 1961 Revised Ed., p. 6
[134] See LAUREL (ED.), PROCEEDINGS OF THE PHILIPPINE CONSTITUTIONAL CONVENTION, VOL. VI, pp. 494-495.
[135] Explanatory Note of the Committee on Nationalization of Lands and Natural Resources, September 14, 1934, reproduced in LAUREL (ED.), PROCEEDINGS OF THE PHILIPPINE CONSTITUTIONAL CONVENTION, VOL. VII, pp. 464-468; see also DE LEON AND DE LEON, JR., PHILIPPINE CONSTITUTIONAL LAW: PRINCIPLES AND CASES, VOL. 2, pp. 801-802.
[136] Section 8, Article XIV, see note 139 for the full text of the provision.
[137] Paragraph 1, Section 2, Article XII of the 1987 Constitution provides:
All lands of the public domain, waters, minerals, coal, petroleum, and other minerals oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. with the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations and associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
[138] Section 7. Rights to Ancestral Domains.--The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include:
b) Right to Develop Lands and Natural Resources.-- Subject to Section 56 hereof, right to develop, control and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights;
[139] Section 57. Natural Resources within Ancestral Domains.--The ICCs/IPs shall have priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has agreed to allow such operation: Provided, finally, That the NCIP may exercise visitorial powers and take appropriate action to safeguard the rights of the ICCs/IPs under the same contract.
[140] Section 59. Certification Precondition - All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of Indigenous peoples concerned: Provided, further, That no department, government agency or government-owned or controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.
[141] Section 58. Environmental Considerations.- Ancestral domains or portions thereof, which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined by appropriate agencies with the full participation of the Indigenous peoples concerned shall be maintained, managed and developed for such purposes. The Indigenous peoples concerned shall be given the responsibility to maintain, develop, protect and conserve such areas with the full and effective assistance of government agencies. Should the Indigenous peoples decide to transfer the responsibility over the areas, said decision must be made in writing. The consent of the Indigenous peoples should be arrived at in accordance with its customary laws without prejudice to the basic requirements of existing laws on free and prior informed consent: Provided, That the transfer shall be temporary and will ultimately revert to the Indigenous peoples in accordance with the program for technology transfer; Provided, further, That no Indigenous peoples shall be displaced or relocated for the purpose enumerated under this section without the written consent of the specific persons authorized to give consent.
[142] Citing Section 2, Article XII of the Constitution.
[143] Memorandum of Petitioners, Id., at 840-841.
[144] State v. Lathrop, 93 Ohio St 79, 112 NE 209, cited in 16 Am Jur 2d, Constitutional Law, § 100.
[145] Old Wayne Mutual Life Assn. v. McDonough, 204 US 8, 51 L Ed 345, cited in 16 Am Jur 2d Constitutional Law, § 100.
[146] Third paragraph, Section 2, Article XII, Constitution -
The Congress may, by law, allow small scale-utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
[147] Section 6, Article XIII, Constitution -
The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition and utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of the indigenous communities to their ancestral lands.
The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.
[148] Section 7, Article XIII, Constitution -
The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.
[149] Bower v. Big Horn Canal Assn. (Wyo) 307 P2d 593, cited in 16 Am Jur 2d Constitutional Law, § 100.
[150] Republic Act No. 7076 (the Small-Scale Mining Act of 1991), Republic Act No. 7942 (the Philippine Mining Act of 1995).
[151] Section 3(b) of R.A. 7076 defines "small-scale mining" as referring to mining activities which rely heavily on manual labor using simple implements and methods and do not use explosives or heavy mining equipment.
[152] Section 7, R.A. 7076 provides:
Ancestral lands. - No ancestral land may be declared as a people's small-scale mining area without the prior consent of the cultural communities concerned: Provided, That, if ancestral lands are declared as peole's small-scale mining areas, the members of the cultural communities therein shall be given priority for the awarding of a people's small-scale mining contract.
[153] Section 16, R.A. 7492.
[154] Section 17, R.A. 7942.
[155] Sec. 3(q), Chapter 1, Republic Act No. 7942 (the Philippine Mining Act of 1995).
[156] 4 RECORD OF THE CONSTITUTIONAL COMMISSION 37.
[157] Sections 7(a) and (b), R.A. 8371.
[158] Presidential Decree No. 1151 (1971).
[159] Presidential Decree No. 1586 (1978) and DENR Administrative Order No. 37 (1996).
[160] Republic Act No. 7160 (1991).
[161] Republic Act No. 7942.
[162] Petition, Rollo, pp. 23-25.
[163] Ramirez v. CA, 248 SCRA 590, 596 (1995).
[164] Section 53 (f), R.A. 8371.
[165] Section 52, R.A. 8371.
[166] Section 53, R.A. 8371.
[167] Sections 40, 51, 52, 53, 54, 62 and 66, R.A. No. 8371.
[168] Sections 63 and 65, R.A. No. 8371.
[169] Section 40. Composition.- The NCIP shall be an independent agency under the Office of the President and shall be composed of seven (7) Commissioners belonging to the ICCs/IPs, one (1) of whom shall be the Chairperson. The Commissioners shall be appointed by the President of the Philippines from a list of recommendees submitted by authentic ICCs/IPs: Provided, That the seven (7) Commissioners shall be appointed specifically from each of the following ethnographic areas, Region I and the Cordilleras; Region II, the rest of Luzon; Island Groups including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and Central Mindanao: Provided, That at least two (2) of the seven (7) Commissioners shall be women.
[170] Section 66. Jurisdiction of the NCIP.- The NCIP, through its regional offices, shall have jurisdiction over all claims and disputes involving rights of ICCs/IPs. Provided, however, That no such dispute shall be brought to the NCIP unless the parties have exhausted all remedies provided under their customary laws. For this purpose, a certification shall be issued by the Council of Elders/Leaders who participated in the attempt to settle the dispute that the same has not been resolved, which certification shall be a condition precedent to the filing of a petition with the NCIP.
[171] Section 62. Resolution of Conflicts.- In cases of conflicting interest, where there are adverse claims within the ancestral domains as delineated in the survey plan, and which can not be resolved, the NCIP shall hear and decide, after notice to the proper parties, the disputes arising from the delineation of such ancestral domains: Provided, That if the dispute is between and/or among ICCs/IPs regarding the traditional boundaries of their respective ancestral domains, customary process shall be followed. The NCIP shall promulgate the necessary rules and regulations to carry out its adjudicatory functions: Provided, further, That any decision, order, award or ruling of the NCIP on any ancestral domain dispute or on any matter pertaining to the application, implementation, enforcement and interpretation of this Act may be brought for Petition for Review to the Court of Appeals within fifteen (15) days from receipt of a copy thereof.
[172] Memorandum of Petitioners, Rollo ,pp. 873-874.
[173] Section 3 (f). Customary Laws - refer to a body of written and/or unwritten rules, usages, customs and practices traditionally and continually recognized, accepted and observed by respective ICCs/IPs;
Sec. 63. Applicable Laws. - Customary laws, traditions and practices of the ICCs/IPs of the land where the conflict arises shall be applied first with respect to property rights, claims and ownerships, hereditary succession and settlement of land disputes. Any doubt or ambiguity in the application and interpretation of laws shall be resolved in favor of the ICCs/IPs.
[174] Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve ICCs/IPs, customary laws and practices shall be used to resolve the dispute.
[175] Memorandum of Petitioners, Rollo, pp.875-876.
[176] R.A. 8371 states:
Sec. 65. Primacy of Customary Laws and Practices. -- When disputes involve ICCs/IPs, customary laws and practices shall be used to resolve the dispute.
[177] See Secs. 62 and 63, R.A. 8371.
[178] Sec. 65, R.A. 8371.
[179] The Civil Code provides:
Article 12. A custom must be proved as a fact, according to the rules of evidence.
[180] The Civil Code provides:
Article 11. Customs which are contrary to law, public order or public policy shall not be countenanced.180
[181] R.A. No. 7160 reads:
Sec. 399. Lupong Tagapamayapa. -
x x x
(f) In barangays where majority of the inhabitants are members of indigenous peoples, local systems of settling disputes of indigenous peoples, local systems of settling disputes through their councils of datus or elders shall be recognized without prejudice to the applicable provisions of this Code.
[182] Sec. 38, R.A. 8371.
[183] Secs. 44 (a), (b), (c),(d), (f), (g), (h), (I), (j), (k), (l), (m), (n), (p), (q), R.A. 8371.
[184] Sec. 44 (o), R.A. 8371.
[185] Secs. 44 (e), 51-54, 62, R.A. 8371.
[186] 1 Am Jur 2d, Administrative Law, § 55.
[187] Sec. 62, R.A. 8371.
[188] Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
[189] Sec. 44 (f), R.A. 8371.
[190] Sec. 44 (g), R.A, 8371.
[191] Sec. 44 (j), R.A. 8371.
[192] Sec. 44 (p), R.A. 8371.
[193] Sec. 40, R.A. 8371.
[194] Sec. 42, R.A. 8371.
[195] Supra note 75.
[196] R.A. 7076.
[197] R.A. 7942.
[198] Section 56, R.A. 8371.
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