EN BANC

[G.R. No. 135385. December 6, 2000.]

ISAGANI CRUZ and CESAR EUROPA , petitioners, vs . SECRETARY OF

ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF
BUDGET AND MANAGEMENT and CHAIRMAN and COMMISSIONERS
OF THE NATIONAL COMMISSION ON INDIGENOUS PEOPLES ,
respondents.

HON. JUAN M. FLAVIER, HON. PONCIANO BENNAGEN, BAYANI

ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO WANDAG, EVELYN
DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN,
MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-
CONNIE SATURNO, BAE MALOMO-BEATRIZ T. ABASALA, DATU
BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU MANTUMUKAW
TEOFISTO SABASALES, DATU EDUARDO BANDA, DATU JOEL UNAD,
DATU RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D.
SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG
MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA
SAWAY, BAI INAY DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA
HELINITA T. PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY,
DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D.
AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S.
ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE, BENITO CARINO,
JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY
SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT, ANDRES
MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO,
CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ,
RODOLFO C. AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA
T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL, MANUEL T.
SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA,
ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H.
MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S.
MANSANGCAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY,
HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY
UGYUB, SALVADOR TIONGSON, VENANCIO APANG, MADION MALID,
SUKIM MALID, NENENG MALID, MANGKATADONG AUGUSTO
DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL,
FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY
SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSA GONOS,
ROMEO SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR.,
SARING MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI,
MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL
MALID, represented by her father CORNELIO MALID, MARCELINO M.
LADRA, represented by her father MONICO D. LADRA, JENNYLYN
MALID, represented by her father TONY MALID, ARIEL M.
EVANGELISTA, represented by her mother LINAY BALBUENA,
EDWARD M. EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B'LAAN
TRIBAL FARMER'S ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC.
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 and GREEN FORUM-WESTERN VISAYAS , intervenors.

COMMISSION ON HUMAN RIGHTS , intervenor.

IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR

THE CONSERVATION OF NATURAL RESOURCES, INC. , intervenor.

Barbara Anne C. Migallos & Troy A. Luna and Raymond Parsifal A. Fortun &
Bienvenido O. Bulataw for petitioners.
The Solicitor General for public respondent.
Luna Bontin Perez & Associates, Rodolfo C. Raquista for intervenors/oppositors.
Leilene Carantes-San Juan for Sioco-Carino and Family.

SYNOPSIS

This is a suit for prohibition and mandamus assailing the constitutionality of certain
provisions of Republic Act No. 8371 (Indigenous People's Rights Act of 1997 (IPRA) and
its Implementing Rules and Regulations. The Court en banc deliberated on the petition and
the votes gathered were equally divided with no majority vote obtained. Seven (7)
members voted to dismiss the petition. Seven (7) other members voted to grant the
petition. After redeliberation, the voting remained the same (7 to 7). Thus, the petition,
pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, was dismissed.

SYLLABUS

REMEDIAL LAW; SUPREME COURT; DISMISSAL OF PETITION WHERE VOTES

EQUALLY DIVIDED AND MAJORITY VOTE ARE NOT OBTAINED. — Petitioners Isagani Cruz
and Cesar Europa brought this suit for prohibition and mandamus as citizens and
taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371
(R.A. 8371), otherwise known as the Indigenous People's Rights Act of 1997 (IPRA), and
its Implementing Rules and Regulations (Implementing Rules). After due deliberation on
the petition, the members of the Court voted as follows: Seven (7) voted to dismiss the
petition. While Seven (7) other members of the Court voted to grant the petition. As the
votes were equally divided (7 to 7) and the necessary majority was not obtained, the case
was redeliberated upon. However, after redeliberation, the voting remained the same.
Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is
DISMISSED.
Puno, J. , Separate Opinion:
1. CONSTITUTIONAL LAW; RA 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT
OF 1977); RECOGNIZES EXISTENCE OF INDIGENOUS CULTURAL COMMUNITIES OR
INDIGENOUS PEOPLE. — Republic Act No. 8371 is entitled "An Act to Recognize, Protect
and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating
a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms,
Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The
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 Indigenous Peoples Rights Act of 1997" or the IPRA. The IPRA recognizes the existence of
the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector
in Philippine society. It grants these people the ownership and possession of their
ancestral domains and ancestral lands, and de nes the extent of these lands and domains.
The ownership given is the indigenous concept of ownership under customary law which
traces its origin to native title.
2. ID.; ID.; ANCESTRAL DOMAINS AND ANCESTRAL LAND ARE PRIVATE
PROPERTY AND DO NOT CONSTITUTE PART OF PUBLIC DOMAIN. — Ancestral domains
and ancestral lands are the private property of indigenous peoples and do not constitute
part of the land of the public domain. The IPRA grants to ICCs/IPs a distinct kind of
ownership over ancestral domains and ancestral lands. The private character of ancestral
lands and domains as laid down in the IPRA is further strengthened by the option given to
individual ICCs/IPs over their individually-owned ancestral lands. For purposes of
registration under the Public Land Act and the Land Registration Act, the IPRA expressly
converts ancestral land into public agricultural land which may be disposed of by the State.
The necessary implication is that ancestral land is private. It, however, has to be rst
converted to public agricultural land simply for registration purposes . Since
ancestral domains and lands are private, if the ICC/IP wants to avail of the bene ts of C.A.
141 and Act 496, the IPRA itself converts his ancestral land, regardless of whether the land
has a slope of eighteen per cent (18%) or over, from private to public agricultural land for
proper disposition. The option to register land under the Public Land Act and the Land
Registration Act has nonetheless a limited period. This option must be exercised within
twenty (20) years from October 29, 1997, the date of approval of the IPRA.
3. ID.; ID.; OWNERSHIP BY ICCs/IPs OF ANCESTRAL DOMAIN LIMITED AND
DOES NOT INCLUDE RIGHT TO ALIENATE. — The right of ownership and possession by the
ICCs/lPs of their ancestral domains is a limited form of ownership and does not include
the right to alienate the same. Ownership of ancestral domains by native title does not
entitle the ICC/IP to a torrens title but to a Certi cate of Ancestral Domain Title (CADT).
The CADT formally recognizes the indigenous concept of ownership of the ICCs/IPs over
their ancestral domain. The right of ownership and possession of the ICCs/IPs to their
ancestral domains is held under the indigenous concept of ownership. This concept
maintains the view that ancestral domains are the ICCs/IPs private but community
property. It is private simply because it is not part of the public domain. But its private
character ends there. The ancestral domain is owned in common by the ICCs/IPs and not
by one particular person. Ownership over the natural resources in the ancestral domains
remains with the State and the ICCs/IPs are merely granted the right to "manage and
conserve" them for future generations, "bene t and share" the pro ts from their allocation
and utilization, and "negotiate the terms and conditions for their exploration" for the
purpose of "ensuring ecological and environmental protection and conservation
measures." Simply stated, the ICCs/IPs' rights over the natural resources take the form of
management or stewardship.
4. ID.; ID.; SECTIONS 7(a), 7(b) AND 57 THEREOF DO NOT VIOLATE REGALIAN
DOCTRINE. — Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the regalian doctrine
enshrined in Section 2, Article XII of the 1987 Constitution. Examining the IPRA, there is
nothing in the law that grants to the ICCs/IPs ownership over the natural resources within
their ancestral domains. The right of ICCs/lPs in their ancestral domains includes
ownership, but this "ownership" is expressly de ned and limited in Section 7 (a) . The
ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally
and actually occupied by ICCs/IPs, sacred places, traditional hunting and shing grounds,
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 and all improvements made by them at any time within the domains." It will be noted that
this enumeration does not mention bodies of water not occupied by the ICCs/IPs,
minerals, coal, wildlife, ora and fauna in the traditional hunting grounds, fish in the
traditional shing grounds, forests or timber in the sacred places, etc. and all other natural
resources found within the ancestral domains. Indeed, the right of ownership under
Section 7 (a) does not cover "waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, sheries, forests or timber, wildlife, ora and
fauna and all other natural resources " enumerated in Section 2, Article XII of the 1987
Constitution-as belonging to the State. The non-inclusion of ownership by the ICCs/IPs
over the natural resources in Section 7(a) complies with the Regalian doctrine. The large-
scale utilization of natural resources in Section 57 of the IPRA is allowed under paragraphs
1 and 4, Section 2, Article XII of the 1987 Constitution. Section 57 of the IPRA does not
give the ICCs/lPs the right to "manage and conserve" the natural resources. Instead, the
law only grants the ICCs/IPs "priority rights" in the development or exploitation thereof.
Priority means giving preference. Having priority rights over the natural resources does not
necessarily mean ownership rights. The grant of priority rights implies that there is a
superior entity that owns these resources and this entity has the power to grant
preferential rights over the resources to whosoever itself chooses. Section 57 is not a
repudiation of the Regalian doctrine. Rather, it is an a rmation of the said doctrine that all
natural resources found within the ancestral domains belong to the State. It incorporates
by implication the Regalian doctrine, hence, requires that the provision be read in the light
of Section 2, Article XII of the 1987 Constitution.
5. ID.; ID.; SECTION 1, PART II, RULE III OF THE IMPLEMENTING RULE,
UNCONSTITUTIONAL. — Section 1, Part II, Rule III of the Implementing Rules goes beyond
the parameters of Sec. 7 (a) of the IPRA and is unconstitutional. The constitutionality of
Section 1, Part II, Rule III of the Implementing Rules was not speci cally and categorically
challenged by petitioners. Petitioners actually assail the constitutionality of the
Implementing Rules in general. Nevertheless, to avoid any confusion in the implementation
of the law, it is necessary to declare that the inclusion of "natural resources" in Section 1,
Part II, Rule III of the Implementing Rules goes beyond the parameters of Section 7 (b) of
the law and is contrary to Section 2, Article X11 of the 1987 Constitution.
Vitug, J. , Separate Opinion:
1. REMEDIAL LAW; SUPREME COURT; SHOULD RESOLVE ISSUES OF GRAVE
NATIONAL INTEREST. — An issue of grave national interest indeed deserves a proper
place in any forum and, when it shows itself in a given judicial controversy, the rules of
procedure, like locus standi, the propriety of the speci c remedy invoked, or the principle
of hierarchy of courts, that may ordinarily be raised by party-litigants, should not be so
perceived as good and inevitable justi cations for advocating timidity, let alone
isolationism, by the Court.
2. ID.; ACTIONS; PARTIES; MUST HAVE PERSONAL AND SUBSTANTIAL
INTEREST IN THE DISPUTE. — A cardinal requirement, to which I agree, is that one who
invokes the Court's adjudication must have a personal and substantial interest in the
dispute; indeed, the developing trend would require a logical nexus between the status
asserted and the claim sought to be adjudicated in order to ensure that one is the proper
and appropriate party to invoke judicial power. The rule requires a party to aptly show a
personal stake in the outcome of the case or an injury to himself that can be redressed by
a favorable decision so as to warrant his invocation of the Court's jurisdiction and to
render legally feasible the exercise of the Court's remedial powers in his behalf. If it were
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 otherwise, the exercise of that power can easily become too unwieldy by its sheer
magnitude and scope to a point that may, in no small measure, adversely affect its
intended essentiality, stability and consequentiality.
3. ID.; ID.; ID.; ID.; RULE RELAXED WHERE ISSUE IS OF TRANSCENDENTAL
IMPORTANCE. — Nevertheless, where a most compelling reason exists, such as when the
matter is of transcendental importance and paramount interest to the nation, the Court
must take the liberal approach that recognizes the legal standing of nontraditional
plaintiffs, such as citizens and taxpayers, to raise constitutional issues that affect them.
This Court thus did so in a case that involves the conservation of our forests for ecological
needs. Until an exact balance is struck, the Court must accept an eclectic notion that can
free itself from the bondage of legal nicety and hold trenchant technicalities subordinate
to what may be considered to be of overriding concern.
4. CONSTITUTIONAL LAW; CONGRESS; AUTHORITY TO ENACT LAWS FOR
APPLICABILITY OF CUSTOMARY LAWS, CONSTRUED. — The second paragraph of Section
5 of Article XII of the Constitution allows Congress to provide "for the applicability of
customary laws governing property rights or relations in determining the ownership and
extent of ancestral domains." I do not see this statement as saying that Congress may
enact a law that would simply, express that "customary laws shall govern" and end it there.
Had it been so, the Constitution could have itself easily provided without having to still
commission Congress to do it. The constitutional aim, it seems to me, is to get Congress
to look closely into the customary laws and, with speci city and by proper recitals, to hew
them to, and make them part of, the stream of laws. The "due process clause," as I so
understand it in Tanada vs. Tuvera would require an apt publication of a legislative
enactment before it is permitted to take force and effect. So, also, customary laws, when
specifically enacted to become part of statutory law, must first undergo that publication to
render them correspondingly binding and effective as such.
Kapunan, J., Separate Opinion:
1. STATUTORY CONSTRUCTION; STATUTES; SHOULD BE CONSTRUED
WHENEVER POSSIBLE IN HARMONY WITH CONSTITUTION. — It is established doctrine
that a statute should be construed whenever possible in harmony with, rather than in
violation of, the Constitution. The presumption is that the legislature intended to enact a
valid, sensible and just law and one which operates no further than may be necessary to
effectuate the specific purpose of the law. AHSEaD

2. CONSTITUTIONAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW;

REQUISITES. — The time-tested standards for the exercise of judicial review are: (1) the
existence of an appropriate case; (2) an interest personal and substantial by the party
raising the constitutional question; (3) the plea that the function be exercised at the
earliest opportunity; and (4) the necessity that the constitutional question be passed upon
in order to decide the case.
3. ID.; ID.; ID.; "ACTUAL CASE OR CONTROVERSY," DEFINED. — An "actual case or
controversy" means an existing case or controversy which is both ripe for resolution and
susceptible of judicial determination, and that which is not conjectural or anticipatory, or
that which seeks to resolve hypothetical or feigned constitutional problems. A petition
raising a constitutional question does not present an "actual controversy," unless it alleges
a legal right or power. Moreover, it must show that a con ict of rights exists, for inherent in
the term "controversy" is the presence of opposing views or contentions. Otherwise, the
Court will be forced to resolve issues which remain unfocused because they lack such
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 concreteness provided when a question emerges precisely framed from a clash of
adversary arguments exploring every aspect of a multi-faceted situation embracing
con icting and demanding interests. The controversy must also be justiciable; that is, it
must be susceptible of judicial determination.
4. ID.; ID.; ID.; CASE AT BAR, A CONSTITUTIONAL ISSUE. — In the case at bar,
there exists a live controversy involving a clash of legal rights. A law has been enacted, and
the Implementing Rules and Regulations approved. Money has been appropriated and the
government agencies concerned have been directed to implement the statute. It cannot be
successfully maintained that we should await the adverse consequences of the law in
order to consider the controversy actual and ripe for judicial resolution. It is precisely the
contention of the petitioners that the law, on its face, constitutes an unconstitutional
abdication of State ownership over lands of the public domain and other natural resources.
Moreover, when the State machinery is set into motion to implement an alleged
unconstitutional statute, this Court possesses su cient authority to resolve and prevent
imminent injury and violation of the constitutional process.
5. ID.; ID.; ID.; PARTIES MUST HAVE PERSONAL AND SUBSTANTIAL INTEREST
IN CASE. — In addition to the existence of an actual case or controversy, a person who
assails the validity of a statute must have a personal and substantial interest in the case,
such that, he has sustained, or will sustain, a direct injury as a result of its enforcement.
Evidently, the rights asserted by petitioners as citizens and taxpayers are held in common
by all the citizens, the violation of which may result only in a "generalized grievance." Yet, in
a sense, all citizen's and taxpayer's suits are efforts to air generalized grievances about the
conduct of government and the allocation of power.
6. REMEDIAL LAW; ACTIONS; PARTIES; COURT HAS ADOPTED LIBERAL
ATTITUDE WITH REGARD TO STANDING. — In several cases, the Court has adopted a
liberal attitude with regard to standing. The proper party requirement is considered as
merely procedural, and the Court has ample discretion with regard thereto. This Court has
recognized that a "public right," or that which belongs to the people at large, .may also be
the subject of an actual case or controversy.
7. ID.; ID.; ID.; PETITIONERS AS CITIZENS POSSESS PUBLIC RIGHT TO ENSURE
THAT NATIONAL PATRIMONY IS NOT ALIENATED AND DIMINISHED. — Petitioners, as
citizens, possess the "public right" to ensure that the national patrimony is not alienated
and diminished in violation of the Constitution. Since the government, as the guardian of
the national patrimony, holds it for the bene t of all Filipinos without distinction as to
ethnicity, it follows that a citizen has su cient interest to maintain a suit to ensure that any
grant of concessions covering the national economy and patrimony strictly complies with
constitutional requirements. Thus, the preservation of the integrity and inviolability of the
national patrimony is a proper subject of a citizen's suit.
8. ID.; ID.; ID.; TAXPAYERS, WITH RIGHT TO RESTRAIN OFFICIALS FROM
WASTING PUBLIC FUNDS. — It is well-settled that a taxpayer has the right to enjoin public
o cials from wasting public funds through the implementation of an unconstitutional
statute, and by necessity, he may assail the validity of a statute appropriating public funds.
The taxpayer has paid his taxes and contributed to the public coffers and, thus, may inquire
into the manner by which the proceeds of his taxes are spent. The expenditure by an
o cial of the State for the purpose of administering an invalid law constitutes a
misapplication of such funds.
9. ID.; SPECIAL CIVIL ACTIONS; PROHIBITION AND MANDAMUS; PROPER
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 REMEDIES TO RESTRAIN IMPLEMENTATION OF CHALLENGED PROVISIONS OF IPRA AND
ITS IMPLEMENTING RULES. — In this case, the petitioners pray that respondents be
restrained from implementing the challenged provisions of the IPRA and its Implementing
Rules and the assailed DENR Circular No. 2, series of 1998, and that the same o cials be
enjoined from disbursing public funds for the implementation of the said law and rules.
They further ask that the Secretary of the DENR be compelled to perform his duty to
control and supervise the activities pertaining to natural resources. Prohibition will lie to
restrain the public o cials concerned from implementing the questioned provisions of the
IPRA and from disbursing funds in connection therewith if the law is found to be
unconstitutional. Likewise, mandamus will lie to compel the Secretary of the DENR to
perform his duty to control and supervise the exploration, development, utilization and
conservation of the country's natural resources. Consequently, the petition for prohibition
and mandamus is not an improper remedy for the relief sought.
10. ID.; ACTIONS; HIERARCHY OF COURTS; MAY BE DISPENSED WITH IN
EXCEPTIONAL AND COMPELLING CIRCUMSTANCES. — Between two courts of concurrent
original jurisdiction, it is the lower court that should initially pass upon the issues of a case.
That way, as a particular case goes through the hierarchy of courts, it is shorn of all but the
important legal issues or those of rst impression, which are the proper subject of
attention of the appellate court. This is a procedural rule borne of experience and adopted
to improve the administration of justice. This Court has consistently enjoined litigants to
respect the hierarchy of courts. Although this Court has concurrent jurisdiction with the
Regional Trial Courts and the Court of Appeals to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give a
party unrestricted freedom of choice of court forum. The resort to this court's primary
jurisdiction to issue said writs shall be allowed only where the redress desired cannot be
obtained in the appropriate courts or where exceptional and compelling circumstances
justify such invocation.
11. STATUTORY CONSTRUCTION; STATUTES; SHOULD BE CONSTRUED IN
HARMONY, AND NOT IN VIOLATION, OF THE FUNDAMENTAL LAW; RATIONALE. — A
statute should be construed in harmony with, and not in violation, of the fundamental law.
The reason is that the legislature, in enacting a statute, is assumed to have acted within its
authority and adhered to the constitutional limitations. Accordingly, courts should
presume that it was the intention of the legislature to enact a valid, sensible, and just law
and one which operates no further than may be necessary to effectuate the speci c
purpose of the law.
12. POLITICAL LAW; NATIONAL ECONOMY AND PATRIMONY; JURA REGALIA,
CONSTRUED. — Generally, under the concept of jura regalia, private title to land must be
traced to some grant, express or implied, from the Spanish Crown or its successors, the
American Colonial government, and thereafter, the Philippine Republic. The belief that the
Spanish Crown is the origin of all land titles in the Philippines has persisted because title to
land must emanate from some source for it cannot issue forth from nowhere. In its broad
sense, the term "jura regalia" refers to royal rights, or those rights which the King has by
virtue of his prerogatives. In Spanish law, it refers to a right which the sovereign has over
anything in which a subject has a right of property or propriedad. These were rights
enjoyed during feudal times by the king as the sovereign.
13. ID.; ID.; ID.; DOES NOT NEGATE NATIVE TITLE TO LANDS HELD IN PRIVATE
OWNERSHIP. — The Regalian theory, however, does not negate native title to lands held in
private ownership since time immemorial. In the landmark case of Cariño vs. Insular
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 Government the United States Supreme Court, reversing the decision of the pre-war
Philippine Supreme Court, made the following pronouncement: . . . Every presumption is
and ought to be taken against the Government in a case like the present. It might, perhaps,
be proper and su cient to say that when, as far back as testimony or memory goes, the
land has been held by individuals under a claim of private ownership, it will be presumed to
have been held in the same way from before the Spanish conquest, and never to have been
public land. . . . . The above ruling institutionalized the recognition of the existence of native
title to land, or ownership of land by Filipinos by virtue of possession under a claim of
ownership since time immemorial and independent of any grant from the Spanish Crown,
as an exception to the theory of jura regalia. A proper reading of Cariño would show that
the doctrine enunciated therein applies only to lands which have always been considered
as private, and not to lands of the public domain, whether alienable or otherwise. A
distinction must be made between ownership of land under native title and ownership by
acquisitive prescription against the State. Ownership by virtue a of native title
presupposes that the land has been held by its possessor and his predecessors-in-interest
in the concept of an owner since time immemorial. The land is not acquired from the State,
that is, Spain or its successors-in-interest, the United States and the Philippine
Government. There has been no transfer of title from the State as the land has been
regarded as private in character as far back as memory goes. In contrast, ownership of
land by acquisitive prescription against the State involves a conversion of the character of
the property from alienable public land to private land, which presupposes a transfer of
title from the State to a private person. Since native title assumes that the property
covered by it is private land and is deemed never to have been part of the public domain,
the Solicitor General's thesis that native title under Cariño applies only to lands of the
public domain is erroneous. Consequently, the classi cation of lands of the public domain
into agricultural, forest or timber, mineral lands, and national parks under the Constitution
is irrelevant to the application of the Cariño doctrine because the Regalian doctrine which
vests in the State ownership of lands of the public domain does not cover ancestral lands
and ancestral domains.
14. CONSTITUTIONAL LAW; 1935 CONSTITUTION; SECTION 1, ARTICLE XII
THEREOF DOES NOT DIVEST LANDOWNERS OF THEIR LANDS COVERED BY ANCESTRAL
LANDS AND DOMAIN. — The text of the provision of the 1935 Constitution invoked by the
Solicitor General, while embodying the theory of jura regalia, is too clear for any
misunderstanding. It simply declares that all agricultural, timber, and mineral lands of the
public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, and other natural resources of the Philippines belong to the State."
Nowhere does it state that certain lands which are "absolutely necessary for social welfare
and existence," including those which are not part of the public domain, shall thereafter be
owned by the State. If there is any room for constitutional construction, the provision
should be interpreted in favor of the preservation, rather than impairment or
extinguishment, of vested rights. Stated otherwise, Section 1, Article XII of the 1935
Constitution cannot be construed to mean that vested right which had existed then were
extinguished and that the landowners were divested of their lands, all in the guise of
"wrest[ing] control of those portions of the natural resources [which the State] deems
absolutely necessary for social welfare and existence." On the contrary, said Section
restated the fundamental rule against the diminution of existing rights by expressly
providing that the ownership of lands of the public domain and other natural resources by
the State is "subject to any existing right, grant, lease, or concessions." The "existing rights"
that were intended to be protected must, perforce, include the right of ownership by
indigenous peoples over their ancestral lands and domains. The words of the law should
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 be given their ordinary or usual meaning, and the term "existing rights" cannot be assigned
an unduly restrictive definition.
15. ID.; LEGISLATIVE DEPARTMENT; FRAMERS OF THE CONSTITUTION AS
WELL AS THE PEOPLE ADOPTING IT, PRESUMED TO BE AWARE OF PREVAILING
DOCTRINES CONCERNING SUBJECT PROVISIONS. — It cannot be correctly argued that,
because the framers of the Constitution never expressly mentioned Cariño in their
deliberations, they did not intend to adopt the concept of native title to land, or that they
were unaware of native title as an exception to the theory of jura regalia. The framers of the
Constitution, as well as the people adopting it, were presumed to be aware of the
prevailing judicial doctrines concerning the subject of constitutional provisions, and courts
should take these doctrines into consideration in construing the Constitution.
16. STATUTORY CONSTRUCTION; CONSTITUTION; MUST BE CONSTRUED AS A
WHOLE. — The Constitution must be construed as a whole. It is a rule that when
construction is proper, the whole Constitution is examined in order to determine the
meaning of any provision. That construction should be used which would give effect to the
entire instrument.
17. CONSTITUTIONAL LAW; RA 8371 (INDIGENOUS PEOPLES RIGHTS ACT);
SECTION 3(a) THEREOF MERELY DEFINES COVERAGE OF ANCESTRAL DOMAIN AND
DOES NOT CONFER OWNERSHIP OVER NATURAL RESOURCES. — Section 3(a) merely
de nes the coverage of ancestral domains, and describes the extent, limit and
composition of ancestral domains by setting forth the standards and guidelines in
determining whether a particular area is to be considered as part of and within the
ancestral domains. In other words, Section 3(a) serves only as a yardstick which points out
what properties are within the ancestral domains. It does not confer or recognize any right
of ownership over the natural resources to the indigenous peoples. Its purpose is
definitional and not declarative of a right or title.
19. ID.; ID.; SECTION 7 (a and b) THEREOF MAKES NO MENTION OF ANY RIGHT
OF OWNERSHIP OF INDIGENOUS PEOPLES OVER NATURAL RESOURCES. — Section 7
makes no mention of any right of ownership of the indigenous peoples over the natural
resources. In fact, Section 7(a) merely recognizes the "right to claim ownership over lands,
bodies of water traditionally and actually occupied by indigenous peoples, sacred places,
traditional hunting and shing grounds, and all improvements made by them at any time
within the domains." Neither does Section 7(b), which enumerates certain rights of the
indigenous peoples over the natural resources found within their ancestral domains,
contain any recognition of ownership vis-a-vis the natural resources.
20. ID.; ID.; SECTIONS 7(b) AND 57 THEREOF REFER TO EXPLORATION OF
NATURAL RESOURCES AND PRIORITY RIGHTS IN THE UTILIZATION OF NATURAL
RESOURCES. — A careful reading of Section 7(b) would reveal that the rights given to the
indigenous peoples are duly circumscribed. These rights are limited only to the following:
"to manage and conserve natural resources within territories and uphold it for future
generations; to bene t and share the pro ts from allocation and utilization of the natural
resources found therein; 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; 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
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 project, and the right to effective measures by the government to prevent any interference
with, alienation and encroachment of these rights." It must be noted that the right to
negotiate terms and conditions granted under Section 7(b) pertains only to the exploration
of natural resources. The term "exploration" refers only to the search or prospecting of
mineral resources, or any other means for the purpose of determining the existence and
the feasibility of mining them for pro t. The exploration, which is merely a preliminary
activity, cannot be equated with the entire process of "exploration, development and
utilization" of natural resources which under the Constitution belong to the State. Section
57, on the other hand, grants the indigenous peoples "priority rights" in the utilization of
natural resources and not absolute ownership thereof. Priority rights do not mean
exclusive rights. What is granted is merely the right of preference or rst consideration in
the award of privileges provided by existing laws and regulations, with due regard to the
needs and welfare of indigenous peoples living in the area.
21. ID.; ID.; SECTION 3(a) and (b), DO NOT VIOLATE DUE PROCESS CLAUSE OF
THE CONSTITUTION. — Petitioners maintain that the broad de nition 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. Petitioners' contention is erroneous. Sections 3(a) and
3(b) expressly provide that the de nition 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. 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. What IPRA only requires is that these
"property rights" already exist and/or vested upon its effectivity.
22. ID.; ID.; SECTION 1, RULE IX OF THE IMPLEMENTING RULES; CUSTOMARY
LAW APPLIES WHERE ALL PARTIES INVOLVED ARE MEMBERS OF THE INDIGENOUS
GROUP. — 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. The application of customary law is limited to disputes concerning
property rights or relations in determining the ownership and extent of the ancestral
domains, where all the parties involved are members of indigenous peoples, speci cally, 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.
Mendoza, J ., Separate Opinion:
1. CONSTITUTIONAL LAW; SUPREME COURT; JUDICIAL POWER EXTENDS
ONLY TO ACTUAL CASES AND CONTROVERSIES. — The judicial power vested in this Court
by Art. VIII, § I extends only to cases and controversies for the determination of such
proceedings as are established by law for the protection or enforcement of rights, or the
prevention, redress or punishment of wrongs. I do not conceive it to be the function of this
Coat under Art. VIII, § 1 of the Constitution to determine in the abstract whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the legislative and executive departments in enacting the IPRA. Our jurisdiction
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 is con ned to cases or controversies. No one reading Art. VIII, §5 can fail to note that, in
enumerating the matters placed in the keeping of this Court, it uniformly begins with the
phrase "all cases.
2. ID.; ID.; ID.; CASE AT BAR. — In this case the purpose of the suit is not to
enforce a property right of petitioners against the government and other respondents or to
demand compensation for injuries suffered by them as a result of the enforcement of the
law, but only to settle what they believe to be the doubtful character of the law in question.
Any judgment that we render in this case will thus not conclude or bind real parties in the
future, when actual litigation will bring to the Court the question of the constitutionality of
such legislation. Such judgment cannot be executed as it amounts to no more than an
expression of opinion upon the validity of the provisions of the law in question.
3. ID.; ID.; JUDICIAL POWER; DUTY TO DETERMINE GRAVE ABUSE OF
DISCRETION PRECLUDES COURT FROM INVOLVING POLITICAL QUESTION DOCTRINE TO
EVADE CERTAIN CASES. — The statement that the judicial power includes the duty to
determine whether there has been a grave abuse of discretion was inserted in Art. VIII, §1
not really to give the judiciary a roving commission to right any wrong it perceives but to
preclude courts from invoking the political question doctrine in order to evade the decision
of certain cases even where violations of civil liberties are alleged.
4. ID.; ID.; ID.; RESOLUTION OF ABSTRACT CONTROVERSIES WILL UPSET
BALANCE OF POWER. — Judicial power cannot be extended to matters which do not
involve actual cases or controversies without upsetting the balance of power among the
three branches of the government and erecting, as it were, the judiciary, particularly the
Supreme Court, as a third branch of Congress, with power not only to invalidate statutes
but even to rewrite them.
5. ID.; ID.; ID.; ID.;-CASE AT BAR. — Yet that is exactly what we would be
permitting in this case were we to assume jurisdiction and decide wholesale the
constitutional validity of the IPRA contrary to the established rule that a party can question
the validity of a statute only if, as applied to him, it is unconstitutional. Here the IPRA is
sought to be declared void on its face.
6. ID.; STATUTES; FACIAL CHALLENGE TO STATUTE, NOT ALLOWED;
EXCEPTION. — The only instance where a facial challenge to a statute is allowed is when it
operates in the area of freedom of expression. In such instance, the overbreadth doctrine
permits a party to challenge the validity of a statute even though as applied to him it is not
unconstitutional but it might be if applied to others not before the Court whose activities
are constitutionally protected. Invalidation of the statute "on its face" rather than "as
applied" is permitted in the interest of preventing a "chilling" effect on freedom of
expression. But in other cases, even if it is found that a provision of a statute is
unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far
inseparable from the rest of the statute that a declaration of partial invalidity is not
possible.
7. ID.; SUPREME COURT; CONSTITUTIONAL ADJUDICATION CANNOT TAKE
PLACE IN A VACUUM. — For the Court to exercise its power of review when there is no
case or controversy is not only to act without jurisdiction but also to run the risk that, in
adjudicating abstract or hypothetical questions, its decision will be based on speculation
rather than experience. Deprived of the opportunity to observe the impact of the law, the
Court is likely to equate questions of constitutionality with questions of wisdom and is
thus likely to intrude into the domain of legislation. Constitutional adjudication, it cannot be
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 too often repeated, cannot take place in a vacuum.
8. ID.; ID.; JUDICIAL REVIEW; RATIONALE IN REFUSAL TO RESOLVE ABSTRACT
CONTROVERSIES. — To decline the exercise of jurisdiction where there is no genuine
controversy is not to show timidity but respect for the judgment of a co-equal department
of government whose acts, unless shown to be clearly repugnant to the fundamental law,
are presumed to be valid. The polestar of constitutional adjudication was set forth by
Justice Laurel in the Angara case when he said that "the power of judicial review is limited
to actual cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis mota,
presented." For the exercise of this power is legitimate only in the last resort, and as a
necessity in the determination of real, earnest, and vital controversy between individuals.
Until, therefore, an actual case is brought to test the constitutionality of the IPRA, the
presumption of constitutionality, which inheres in every statute, must be accorded to it.
Panganiban, J., Separate Opinion:
1. CONSTITUTIONAL LAW; NATIONAL ECONOMY AND PATRIMONY;
PREFERENTIAL RIGHTS TO BENEFICIAL USE OF PUBLIC DOMAIN MAY BE ACCORDED TO
INDIGENOUS CULTURAL COMMUNITIES AND INDIGENOUS PEOPLES; PRIVILEGE MUST
BE SUBJECT TO FUNDAMENTAL LAW. — Our fundamental law mandates the protection of
the indigenous cultural communities' right to their ancestral lands, but such mandate is
"subject to the provisions of this Constitution." I concede that indigenous cultural
communities and indigenous peoples (ICCs/IPs) may be accorded preferential rights to
the bene cial use of public domains, as well as priority in the exploration, development and
utilization of natural resources. Such privileges, however, must be subject to the
fundamental law.
2. ID.; CONSTITUTION, A COMPACT MADE BY AND AMONG CITIZENS TO
GOVERN THEMSELVES; NO GROUP NOR SECTOR IS EXEMPT FROM ITS COMPASS. —
[T]he Constitution is the fundamental law of the land, to which all other laws must conform.
It is the people's quintessential act of sovereignty, embodying the principles upon which
the State and the government are founded. Having the status of a supreme and all-
encompassing law, it speaks for all the people all the time, not just for the majority or for
the minority at intermittent times. Every constitution is a compact made by and among the
citizens of a State to govern themselves in a certain manner. Truly, the Philippine
Constitution is a solemn covenant made by all the Filipinos to govern themselves. No
group, however blessed, and no sector, however distressed, is exempt from its compass. I
submit, that all Filipinos, whether indigenous or not, are subject to the Constitution. Indeed,
no one is exempt from its all-encompassing provisions. Unlike the 1935 Charter, which
was subject to "any existing right, grant, lease or concession," the 1973 and the 1987
Constitutions spoke in absolute terms. Because of the State's implementation of policies
considered to be for the common good, all those concerned have to give up, under certain
conditions, even vested rights of ownership.
3. ID.; R.A. NO. 8371 (INDIGENOUS PEOPLES' RIGHTS ACT OF 1997); SECS. 3(a
and b), 5, 6, 7 (a and b), 8 AND OTHER RELATED PROVISIONS, CONTRAVENE REGALIAN
DOCTRINE. — RA 8371, which de nes the rights of indigenous cultural communities and
indigenous peoples, admittedly professes a laudable intent. It was primarily enacted
pursuant to the state policy enshrined in our Constitution to "recognize and promote the
rights of indigenous cultural communities within the framework of national unity and
development." Though laudable and well-meaning, this statute, however, has provisions
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 that run directly afoul of our fundamental law from which it claims origin and authority.
More speci cally, Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and other related provisions
contravene the Regalian Doctrine - the basic foundation of the State's property regime.
Section 2, Article XII of the Constitution, more speci cally the declaration that the State
owns all lands of the public domain, minerals and natural resources - none of which, except
agricultural lands, can be alienated. In several cases, this Court has consistently held that
non-agricultural land must rst be reclassi ed and converted into alienable or disposable
land for agricultural purposes by a positive act of the government. Mere possession or
utilization thereof, however long, does not automatically convert them into private
properties. The presumption is that "all lands not appearing to be clearly within private
ownership are presumed to belong to the State. Hence, . . . all applicants in land
registration proceedings have the burden of overcoming the presumption that the land
thus sought to be registered forms part of the public domain. Unless the applicant
succeeds in showing by clear and convincing evidence that the property involved was
acquired by him or his ancestors either by composition title from the Spanish Government
or by possessory information title, or any other means for the proper acquisition of public
lands, the property must be held to be part of the public domain. The applicant must
present competent and persuasive proof to substantiate his claim; he may not rely on
general statements, or mere conclusions of law other than factual evidence of possession
and title."
4. ID.; ID.; CONTRAVENES CONSTITUTIONAL PROVISION ON ACQUISITION OF
ALIENABLE PUBLIC LANDS. — Under Section 3, Article XII of the Constitution Filipino
citizens may acquire no more than 12 hectares of alienable public land, whether by
purchase, homestead or grant. More than that, but not exceeding 500 hectares, they may
hold by lease only. RA 8371, however, speaks of no area or term limits to ancestral lands
and domains. In fact, by their mere de nitions, they could cover vast tracts of the nation's
territory. The properties under the assailed law cover everything held, occupied or
possessed "by themselves or through their ancestors, communally or individually since
time immemorial." It also includes all "lands which may no longer be exclusively occupied
by [them] 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." Already, as of June 1998, over 2.5 million hectares have been
claimed by various ICCs/IPs as ancestral domains; and over 10 thousand hectares, as
ancestral lands. Based on ethnographic surveys, the solicitor general estimates that
ancestral domains cover 80 percent of our mineral resources and between 8 and 10
million of the 30 million hectares of land in the country. This means that four fths of its
natural resources and one third of the country's land will be concentrated among 12 million
Filipinos constituting 110 ICCs, while over 60 million other Filipinos constituting the
overwhelming majority will have to share the remaining. These gures indicate a violation
of the constitutional principle of a "more equitable distribution of opportunities, income,
and wealth" among Filipinos. ACTaDH

5. ID.; ID.; ABDICATES DUTY OF STATE TO TAKE FULL CONTROL AND

SUPERVISION OF NATURAL RESOURCES. — Section 2, Article XII of the Constitution,
further provides that "[t]he exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State." The State may (1) directly
undertake such activities; or (2) enter into co-production, joint venture or production-
sharing agreements with Filipino citizens or entities, 60 percent of whose capital is owned
by Filipinos. Such agreements, however, shall not exceed 25 years, renewable for the same
period and under terms and conditions as may be provided by law. But again, RA 8371
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 relinquishes this constitutional power of full control in favor of ICCs/IPs, insofar as natural
resources found within their territories are concerned. Pursuant to their rights of
ownership and possession, they may develop and manage the natural resources, bene t
from and share in the pro ts from the allocation and the utilization thereof. And they may
exercise such right without any time limit, unlike non-ICCs/IPs who may do so only for a
period not exceeding 25 years, renewable for a like period. Consistent with the
Constitution, the rights of ICCs/IPs to exploit, develop and utilize natural resources must
also be limited to such period.

RESOLUTION

PER CURIAM : p

Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and
mandamus as citizens and taxpayers, assailing the constitutionality of certain provisions
of Republic Act No. 8371 (R.A. 8371), otherwise known as the Indigenous Peoples Rights
Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to
comment. 1 In compliance, respondents Chairperson and Commissioners of the National
Commission on Indigenous Peoples (NCIP), the government agency created under the
IPRA to implement its provisions, led on October 13, 1998 their Comment to the Petition,
in which they defend the constitutionality of the IPRA and pray that the petition be
dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of Environment and
Natural Resources (DENR) and Secretary of the Department of Budget and Management
(DBM) led through the Solicitor General a consolidated Comment. The Solicitor General is
of the view that the IPRA is partly unconstitutional on the ground that it grants ownership
over natural resources to indigenous peoples and prays that the petition be granted in
part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one
of the authors of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional
Commission, and the leaders and members of 112 groups of indigenous peoples (Flavier,
et al.), led their Motion for Leave to Intervene. They join the NCIP in defending the
constitutionality of IPRA and praying for the dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise led a Motion
to Intervene and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an
expression of the principle of parens patriae and that the State has the responsibility to
protect and guarantee the rights of those who are at a serious disadvantage like
indigenous peoples. For this reason it prays that the petition be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous People
and the Haribon Foundation for the Conservation of Natural Resources, Inc. (Haribon, et
al.), led a Motion to Intervene with attached Comment-in-Intervention. They agree with the
NCIP and Flavier, et al. that IPRA is consistent with the Constitution and pray that the
petition for prohibition and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations were
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 granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors
led their respective memoranda in which they reiterate the arguments adduced in their
earlier pleadings and during the hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA and
its Implementing Rules on the ground that they amount to an unlawful deprivation of the
State's ownership over lands of the public domain as well as minerals and other natural
resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII
of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains,
and Section 3(b) which, in turn, defines ancestral lands;
TECcHA

"(2) Section 5, in relation to Section 3(a), which provides that ancestral

domains including inalienable public lands, bodies of water, mineral and
other resources found within ancestral domains are private but community
property of the indigenous peoples;

"(3) Section 6 in relation to Section 3(a) and 3(b) which de nes the
composition of ancestral domains and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous
peoples over the ancestral domains;

"(5) Section 8 which recognizes and enumerates the rights of the indigenous
peoples over the ancestral lands;

"(6) Section 57 which provides for priority rights of the indigenous peoples in
the harvesting, extraction, development or exploration of minerals and
other natural resources within the areas claimed to be their ancestral
domains, and the right to enter into agreements with non-indigenous
peoples for the development and utilization of natural resources therein for
a period not exceeding 25 years, renewable for not more than 25 years; and

"(7) Section 58 which gives the indigenous peoples the responsibility to

maintain, develop, protect and conserve the ancestral domains and
portions thereof which are found to be necessary for critical watersheds,
mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover
or reforestation." 2

Petitioners also contend that, by providing for an all-encompassing de nition of

"ancestral domains" and "ancestral lands" which might even include private lands found
within said areas, Sections 3(a) and 3(b) violate the rights of private landowners. 3
In addition, petitioners question the provisions of the IPRA de ning the powers and
jurisdiction of the NCIP and making customary law applicable to the settlement of
disputes involving ancestral domains and ancestral lands on the ground that these
provisions violate the due process clause of the Constitution. 4
These provisions are:
"(1) Sections 51 to 53 and 59 which detail the process of delineation and
recognition of ancestral domains and which vest on the NCIP the sole
authority to delineate ancestral domains and ancestral lands;
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 "(2) Section 52[i] which provides that upon certi cation by the NCIP that a
particular area is an ancestral domain and upon noti cation to the
following o cials, namely, the Secretary of Environment and Natural
Resources, Secretary of Interior and Local Governments, Secretary of
Justice and Commissioner of the National Development Corporation, the
jurisdiction of said officials over said area terminates;

"(3) Section 63 which provides the customary law, traditions and practices of
indigenous peoples shall be applied rst with respect to property rights,
claims of ownership, hereditary succession and settlement of land
disputes, and that any doubt or ambiguity in the interpretation thereof shall
be resolved in favor of the indigenous peoples;

"(4) Section 65 which states that customary laws and practices shall be used
to resolve disputes involving indigenous peoples; and
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and
disputes involving rights of the indigenous peoples." 5

Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP
Administrative Order No. 1, series of 1998, which provides that "the administrative
relationship of the NCIP to the O ce of the President is characterized as a lateral but
autonomous relationship for purposes of policy and program coordination." They contend
that said Rule infringes upon the President's power of control over executive departments
under Section 17, Article VII of the Constitution. 6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[i], 57, 58, 59, 63, 65 and 66 and
other related provisions of R.A. 8371 are unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the Chairperson and
Commissioners of the NCIP to cease and desist from implementing the
assailed provisions of R.A. 8371 and its Implementing Rules;

"(3) The issuance of a writ of prohibition directing the Secretary of the

Department of Environment and Natural Resources to cease and desist
from implementing Department of Environment and Natural Resources
Circular No. 2, series of 1998;

"(4) The issuance of a writ of prohibition directing the Secretary of Budget

and Management to cease and desist from disbursing public funds for the
implementation of the assailed provisions of R.A. 8371; and
"(5) The issuance of a writ of mandamus commanding the Secretary of
Environment and Natural Resources to comply with his duty of carrying out
the State's constitutional mandate to control and supervise the exploration,
development, utilization and conservation of Philippine natural resources."
7

After due deliberation on the petition, the members of the Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan led an opinion, which the
Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity
of the challenged provisions of R.A. 8371. Justice Puno also led a separate opinion
sustaining all challenged provisions of the law with the exception of Section 1, Part II, Rule
III of NCIP Administrative Order No. 1, series of 1998, the Rules and Regulations
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 Implementing the IPRA, and Section 57 of the IPRA which he contends should be
interpreted as dealing with the large-scale exploitation of natural resources and should be
read in conjunction with Section 2, Article XII of the 1987 Constitution. On the other hand,
Justice Mendoza voted to dismiss the petition solely on the ground that it does not raise a
justiciable controversy and petitioners do not have standing to question the
constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice
Panganiban led a separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)
(b), 8, and related provisions of R.A. 8371 are unconstitutional. He reserves judgment on
the constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await
the ling of speci c cases by those whose rights may have been violated by the IPRA.
Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7, and 57
of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De
Leon, Jr., join in the separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not
obtained, the case was redeliberated upon. However, after redeliberation, the voting
remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil
Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of
Justices Puno, Vitug, Kapunan, Mendoza, and Panganiban. DcaECT

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Gonzaga-Reyes, Yñares-Santiago, and De Leon, Jr., JJ., concur.

Separate Opinions
PUNO, J.:

PRECIS
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche
entitled "On the Uses and Disadvantages of History for Life." Expounding on Nietzsche's
essay, Judge Richard Posner 1 wrote: 2
"Law is the most historically oriented, or if you like the most backward-
looking, the most 'past-dependent,' of the professions. It venerates tradition,
precedent, pedigree, ritual, custom, ancient practices, ancient texts, archaic
terminology, maturity, wisdom, seniority, gerontocracy, and interpretation
conceived of as a method of recovering history. It is suspicious of innovation,
discontinuities, 'paradigm shifts,' and the energy and brashness of youth. These
ingrained attitudes are obstacles to anyone who wants to re-orient law in a more
pragmatic direction. But, by the same token, pragmatic jurisprudence must come
to terms with history."
SHADcT

When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced
radical concepts into the Philippine legal system which appear to collide with settled
constitutional and jural precepts on state ownership of land and other natural resources.
The sense and subtleties of this law cannot be appreciated without considering its distinct
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 sociology and the labyrinths of its history. This Opinion attempts to interpret IPRA by
discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted by
Congress not only to ful ll the constitutional mandate of protecting the indigenous cultural
communities' right to their ancestral land but more importantly, to correct a grave
historical injustice to our indigenous people.
This Opinion discusses the following:
I. The Development of the Regalian Doctrine in the Philippine Legal System.
A. The Laws of the Indies
B. Valenton v. Murciano
C. The Public Land Acts and the Torrens System
D. The Philippine Constitutions
II. The Indigenous Peoples Rights Act (IPRA).
A. Indigenous Peoples
1. Indigenous Peoples: Their History
2. Their Concept of Land
III. The IPRA is a Novel Piece of Legislation.
A. Legislative History
IV. The Provisions of the IPRA Do Not Contravene the Constitution.
A. Ancestral domains and ancestral lands are the private property
of indigenous peoples and do not constitute part of the land of
the public domain.
1. The right to ancestral domains and ancestral lands: how
acquired
2. The concept of native title
(a) Cariño v. Insular Government
(b) Indian Title to land
(c) Why the Cariño doctrine is unique
3. The option of securing a torrens title to the ancestral
land
B. The right of ownership and possession by the ICCs/IPs to their
ancestral domains is a limited form of ownership and does not
include the right to alienate the same.
1. The indigenous concept of ownership and customary law
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the
Regalian Doctrine enshrined in Section 2, Article XII of the 1987
Constitution.
1. The rights of ICCs/IPs over their ancestral domains and
lands
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 2. The right of ICCs/IPs to develop lands and natural
resources within the ancestral domains does not deprive
the State of ownership over the natural resources,
control and supervision in their development and
exploitation.
(a) Section 1, Part II, Rule III of the Implementing
Rules goes beyond the parameters of Section 7(a)
of the law on ownership of ancestral domains and
is ultra vires.
(b) The small-scale utilization of natural resources in
Section 7 (b) of the IPRA is allowed under
Paragraph 3, Section 2, Article XII of the 1987
Constitution.
(c) The large-scale utilization of natural resources in
Section 57 of the IPRA may be harmonized with
Paragraphs 1 and 4, Section 2, Article XII of the
1987 Constitution.
V. The IPRA is a Recognition of Our Active Participation in the International
Indigenous Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL
SYSTEM.
A. The Laws of the Indies
The capacity of the State to own or acquire property is the state's power of
dominium. 3 This was the foundation for the early Spanish decrees embracing the feudal
theory of jura regalia. The "Regalian Doctrine" or jura regalia is a Western legal concept that
was rst introduced by the Spaniards into the country through the Laws of the Indies and
the Royal Cedulas. The Laws of the Indies, i.e., more specifically, Law 14, Title 12, Book 4 of
the Novisima Recopilacion de Leyes de las Indias, set the policy of the Spanish Crown with
respect to the Philippine Islands in the following manner:
"We, having acquired full sovereignty over the Indies, and all lands,
territories, and possessions not heretofore ceded away by our royal predecessors,
or by us, or in our name, still pertaining to the royal crown and patrimony, it is our
will that all lands which are held without proper and true deeds of grant be
restored to us as they belong to us, in order that after reserving before all what to
us or to our viceroys, audiencias, and governors may seem necessary for public
squares, ways, pastures, and commons in those places which are peopled, taking
into consideration not only their present condition, but also their future and their
probable increase, and after distributing to the natives what may be necessary for
tillage and pasturage, con rming them in what they now have and giving them
more if necessary, all the rest of said lands may remain free and unencumbered
for us to dispose of as we may wish. DTIaCS

We therefore order and command that all viceroys and presidents of

pretorial courts designate at such time as shall to them seem most expedient, a
suitable period within which all possessors of tracts, farms, plantations, and
estates shall exhibit to them and to the court o cers appointed by them for this
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 purpose, their title deeds thereto. And those who are in possession by virtue of
proper deeds and receipts, or by virtue of just prescriptive right shall be protected,
and all the rest shall be restored to us to be disposed of at our will." 4

The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all
lands became the exclusive patrimony and dominion of the Spanish Crown. The Spanish
Government took charge of distributing the lands by issuing royal grants and
concessions to Spaniards, both military and civilian. 5 Private land titles could only be
acquired from the government either by purchase or by the various modes of land grant
from the Crown. 6
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law
of 1893. 7 The Spanish Mortgage Law provided for the systematic registration of titles and
deeds as well as possessory claims. The law sought to register and tax lands pursuant to
the Royal Decree of 1880. The Royal Decree of 1894, or the "Maura Law," was partly an
amendment of the Mortgage Law as well as the Laws of the Indies, as already amended by
previous orders and decrees. 8 This was the last Spanish land law promulgated in the
Philippines. It required the "adjustment" or registration of all agricultural lands, otherwise
the lands shall revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898 , Spain ceded to the
government of the United States all rights, interests and claims over the national territory
of the Philippine Islands. In 1903, the United States colonial government, through the
Philippine Commission, passed Act No. 926, the first Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of Valenton v.
Murciano. 9
Valenton resolved the question of which is the better basis for ownership of land:
long-time occupation or paper title. Plaintiffs had entered into peaceful occupation of the
subject land in 1860. Defendant's predecessor-in-interest, on the other hand, purchased
the land from the provincial treasurer of Tarlac in 1892. The lower court ruled against the
plaintiffs on the ground that they had lost all rights to the land by not objecting to the
administrative sale. Plaintiffs appealed the judgment, asserting that their 30-year adverse
possession, as an extraordinary period of prescription in the Partidas and the Civil Code,
had given them title to the land as against everyone, including the State; and that the State,
not owning the land, could not validly transmit it.
The Court, speaking through Justice Willard, decided the case on the basis of "those
special laws which from earliest time have regulated the disposition of the public lands in
the colonies." 1 0 The question posed by the Court was: "Did these special laws recognize
any right of prescription as against the State as to these lands; and if so, to what extent
was it recognized?" ADCEcI

Prior to 1880, the Court said, there were no laws speci cally providing for the
disposition of land in the Philippines. However, it was understood that in the absence of
any special law to govern a speci c colony, the Laws of the Indies would be followed.
Indeed, in the Royal Order of July 5, 1862, it was decreed that until regulations on the
subject could be prepared, the authorities of the Philippine Islands should follow strictly
the Laws of the Indies, the Ordenanza of the Intendentes of 1786, and the Royal Cedula of
1754. 1 1
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 Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de
las Indias, the court interpreted it as follows:
"In the preamble of this law there is, as is seen, a distinct statement that all
those lands belong to the Crown which have not been granted by Philip, or in his
name, or by the kings who preceded him. This statement excludes the idea that
there might be lands not so granted, that did not belong to the king. It excludes
the idea that the king was not still the owner of all ungranted lands, because
some private person had been in the adverse occupation of them. By the
mandatory part of the law all the occupants of the public lands are required to
produce before the authorities named, and within a time to be xed by them, their
title papers. And those who had good title or showed prescription were to be
protected in their holdings. It is apparent that it was not the intention of the law
that mere possession for a length of time should make the possessors the owners
of the land possessed by them without any action on the part of the authorities."
12

The preamble stated that all those lands which had not been granted by Philip, or in
his name, or by the kings who preceded him, belonged to the Crown. 1 3 For those lands
granted by the king, the decree provided for a system of assignment of such lands. It also
ordered that all possessors of agricultural land should exhibit their title deed, otherwise,
the land would be restored to the Crown. 1 4
The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered
the Crown's principal subdelegate to issue a general order directing the publication of the
Crown's instructions:
". . . to the end that any and all persons who, since the year 1700, and up to the date of the
promulgation and publication of said order, shall have occupied royal lands, whether or not . . .
cultivated or tenanted, may . . . appear and exhibit to said subdelegates the titles and patents by
virtue of which said lands are occupied. . . . . Said subdelegates will at the same time warn the
parties interested that in case of their failure to present their title deeds within the term
designated, without a just and valid reason therefor, they will be deprived of and evicted from
their lands, and they will be granted to others." 1 5

On June 25, 1880, the Crown adopted regulations for the adjustment of lands
"wrongfully occupied" by private individuals in the Philippine Islands. Valenton construed
these regulations together with contemporaneous legislative and executive interpretations
of the law, and concluded that plaintiffs' case fared no better under the 1880 decree and
other laws which followed it, than it did under the earlier ones. Thus as a general doctrine,
the Court stated:
"While the State has always recognized the right of the occupant to a deed
if he proves a possession for a su cient length of time, yet it has always insisted
that he must make that proof before the proper administrative officers, and obtain
from them his deed, and until he did that the State remained the absolute owner."
16

In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in
force in these Islands by which the plaintiffs could obtain the ownership of these lands
by prescription, without any action by the State." 1 7 Valenton had no rights other than
those which accrued to mere possession. Murciano, on the other hand, was deemed to
be the owner of the land by virtue of the grant by the provincial secretary. In effect,
Valenton upheld the Spanish concept of state ownership of public land.

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 As a tting observation, the Court added that " [t]he policy pursued by the Spanish
Government from earliest times, requiring settlers on the public lands to obtain title deeds
therefor from the State, has been continued by the American Government in Act No. 926."
18

C. The Public Land Acts and the Torrens System

Act No. 926, the rst Public Land Act, was passed in pursuance of the provisions of
the Philippine Bill of 1902. The law governed the disposition of lands of the public domain.
It prescribed rules and regulations for the homesteading, selling, and leasing of portions of
the public domain of the Philippine Islands, and prescribed the terms and conditions to
enable persons to perfect their titles to public lands in the Islands. It also provided for the
"issuance of patents to certain native settlers upon public lands," for the establishment of
town sites and sale of lots therein, for the completion of imperfect titles, and for the
cancellation or con rmation of Spanish concessions and grants in the Islands." In short,
the Public Land Act operated on the assumption that title to public lands in the Philippine
Islands remained in the government; 1 9 and that the government's title to public land
sprung from the Treaty of Paris and other subsequent treaties between Spain and the
United States. 2 0 The term "public land" referred to all lands of the public domain whose
title still remained in the government and are thrown open to private appropriation and
settlement, 2 1 and excluded the patrimonial property of the government and the friar lands.
22

Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This
new law was passed under the Jones Law. It was more comprehensive in scope but
limited the exploitation of agricultural lands to Filipinos and Americans and citizens of
other countries which gave Filipinos the same privileges. 2 3 After the passage of the 1935
Constitution, Act 2874 was amended in 1936 by Commonwealth Act No. 141 .
Commonwealth Act No. 141 remains the present Public Land Law and it is essentially the
same as Act 2874. The main difference between the two relates to the transitory
provisions on the rights of American citizens and corporations during the Commonwealth
period at par with Filipino citizens and corporations. 2 4
Grants of public land were brought under the operation of the Torrens system under
Act 496, or the Land Registration Law of 1903. Enacted by the Philippine Commission, Act
496 placed all public and private lands in the Philippines under the Torrens system. The
law is said to be almost a verbatim copy of the Massachusetts Land Registration Act of
1898, 2 5 which, in turn, followed the principles and procedure of the Torrens system of
registration formulated by Sir Robert Torrens who patterned it after the Merchant Shipping
Acts in South Australia. The Torrens system requires that the government issue an o cial
certi cate of title attesting to the fact that the person named is the owner of the property
described therein, subject to such liens and encumbrances as thereon noted or the law
warrants or reserves. 2 6 The certi cate of title is indefeasible and imprescriptible and all
claims to the parcel of land are quieted upon issuance of said certi cate. This system
highly facilitates land conveyance and negotiation. 2 7aSHAIC

D. The Philippine Constitutions

The Regalian doctrine was enshrined in the 1935 Constitution. One of the xed and
dominating objectives of the 1935 Constitutional Convention was the nationalization and
conservation of the natural resources of the country. 2 8 There was an overwhelming
sentiment in the Convention in favor of the principle of state ownership of natural
resources and the adoption of the Regalian doctrine. 2 9 State ownership of natural
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 resources was seen as a necessary starting point to secure recognition of the state's
power to control their disposition, exploitation, development, or utilization. 3 0 The
delegates to the Constitutional Convention very well knew that the concept of State
ownership of land and natural resources was introduced by the Spaniards, however, they
were not certain whether it was continued and applied by the Americans. To remove all
doubts, the Convention approved the provision in the Constitution a rming the Regalian
doctrine. 3 1
Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and
Utilization of Natural Resources," reads as follows:
"SECTION 1. All agricultural, timber, and mineral lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, and other natural resources of the Philippines belong to the
State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least
sixty per centum of the capital of which is owned by such citizens, subject to any
existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the
exception of public agricultural land, shall not be alienated, and no license,
concession, or lease for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding twenty- ve years, except
as to water rights for irrigation, water supply, sheries, or industrial uses other
than the development of water power, in which cases bene cial use may be the
measure and the limit of the grant."

The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on
the "National Economy and the Patrimony of the Nation," to wit:
"SECTION 8. All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, sheries, 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- ve years, renewable for not more than twenty- ve years , except as to
water rights for irrigation, water supply, sheries, or industrial uses other than the
development of water power, in which cases bene cial use may be the measure
and the limit of the grant."

The 1987 Constitution rea rmed the Regalian doctrine in Section 2 of Article XII on
"National Economy and Patrimony," to wit:
"SECTION 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, sheries, forests
or timber, wildlife, ora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly
undertake such activities or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens.
Such agreements may be for a period not exceeding twenty- ve years, renewable
for not more than twenty- ve years, and under such terms and conditions as may
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 be provided by law. In cases of water rights for irrigation, water supply, sheries,
or industrial uses other than the development of water power, bene cial use may
be the measure and limit of the grant. ScaEIT

xxx xxx xxx."

Simply stated, all lands of the public domain as well as all natural resources
enumerated therein, whether on public or private land, belong to the State. It is this
concept of State ownership that petitioners claim is being violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the
Rights of Indigenous Cultural Communities/ Indigenous Peoples, Creating a National
Commission on Indigenous Peoples, Establishing Implementing Mechanisms,
Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The
Indigenous Peoples Rights Act of 1997" or the IPRA.
The IPRA recognizes the existence of the indigenous cultural communities or
indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these
people the ownership and possession of their ancestral domains and ancestral lands, and
de nes the extent of these lands and domains . The ownership given is the indigenous
concept of ownership under customary law which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
— the right to develop lands and natural resources;
— the right to stay in the territories;
— the right in case of displacement;
— the right to safe and clean air and water;
— the right to claim parts of reservations;
— the right to resolve conflict; 3 2
— the right to ancestral lands which include
a. the right to transfer land/property to/among
members of the same ICCs/IPs, subject to customary laws and
traditions of the community concerned;
b. the right to redemption for a period not exceeding
15 years from date of transfer, if the transfer is to a non-
member of the ICC/IP and is tainted by vitiated consent of the
ICC/IP, or if the transfer is for an unconscionable consideration.
33

Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right
to self-governance and empowerment, 3 4 social justice and human rights, 3 5 the right to
preserve and protect their culture, traditions, institutions and community intellectual rights,
and the right to develop their own sciences and technologies. 3 6
To carry out the policies of the Act, the law created the National Commission on
Indigenous Peoples (NCIP). The NCIP is an independent agency under the O ce of the
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 President and is composed of seven (7) Commissioners belonging to ICCs/IPs from each
of the ethnographic areas — Region I and the Cordilleras; Region II; the rest of Luzon;
Island groups including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas;
Northern and Western Mindanao; Southern and Eastern Mindanao; and Central Mindanao.
3 7 The NCIP took over the functions of the O ce for Northern Cultural Communities and
the O ce for Southern Cultural Communities created by former President Corazon Aquino
which were merged under a revitalized structure. 3 8
Disputes involving ICCs/IPs are to be resolved under customary laws and practices.
When still unresolved, the matter may be brought to the NCIP, which is granted quasi-
judicial powers. 3 9 The NCIP's decisions may be appealed to the Court of Appeals by a
petition for review.
Any person who violates any of the provisions of the Act such as, but not limited to,
unauthorized and/or unlawful intrusion upon ancestral lands and domains shall be
punished in accordance with customary laws or imprisoned from 9 months to 12 years
and/or fined from P100,000.00 to P500,000.00 and obliged to pay damages. 4 0
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural
Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987
Constitution while that of "IPs" is the contemporary international language in the
International Labor Organization (ILO) Convention 169 4 1 and the United Nations (UN)
Draft Declaration on the Rights of Indigenous Peoples. 4 2
ICCs/IPs are defined by the IPRA as:
"SECTION 3 [h]. Indigenous Cultural Communities/ Indigenous
Peoples. — refer to a group of people or homogeneous societies identi ed by self-
ascription and ascription by others, who have continuously lived as organized
community on communally bounded and de ned territory, and who have, under
claims of ownership since time immemorial, occupied, possessed and utilized
such territories, sharing common bonds of language, customs, traditions and
other distinctive cultural traits, or who have, through resistance to political, social
and cultural inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the majority of Filipinos. ICCs/IPs shall
likewise include peoples who are regarded as indigenous on account of their
descent from the populations which inhabited the country, at the time of conquest
or colonization, or at the time of inroads of non-indigenous religions and cultures,
or the establishment of present state boundaries, who retain some or all of their
own social, economic, cultural and political institutions, but who may have been
displaced from their traditional domains or who may have resettled outside their
ancestral domains." SIcCEA

Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or

homogeneous societies who have continuously lived as an organized community on
communally bounded and de ned territory . These groups of people have actually
occupied, possessed and utilized their territories under claim of ownership since time
immemorial. They share common bonds of language, customs, traditions and other
distinctive cultural traits, or, they, by their resistance to political, social and cultural
inroads of colonization, non-indigenous religions and cultures, became historically
differentiated from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs
who inhabited the country at the time of conquest or colonization, who retain some or
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 all of their own social, economic, cultural and political institutions but who may have
been displaced from their traditional territories or who may have resettled outside their
ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and mountains of
Luzon, Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of
islands. They are composed of 110 tribes and are as follows:
1. In the Cordillera Autonomous Region — Kankaney, Ibaloi, Bontoc,
Tinggian or Itneg, Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of
Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and
Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of
Batanes, Aeta of Cagayan, Quirino and Isabela.

2. In Region III — Aetas.

3. In Region IV — Dumagats of Aurora, Rizal; Remontado of Aurora,
Rizal, Quezon; Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya
of Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro; Cuyonon,
Palawanon, Tagbanua and Tao't bato of Palawan.
4. In Region V — Aeta of Camarines Norte and Camarines Sur, Aeta-
Abiyan, Isarog, and Kabihug of Camarines Norte; Agta, and Mayon of Camarines
Sur, Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and
Camarines Sur.
5. In Region VI — Ati of Negros Occidental, Iloilo and Antique, Capiz; the
Magahat of Negros Occidental; the Corolano and Sulod.
6. In Region VII — Magahat of Negros Oriental and Eskaya of Bohol. DcIHSa

7. In Region IX — the Badjao numbering about 192,000 in Tawi-Tawi,

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

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

10. In Region XII — Ilianen, Tiruray, Maguindanao, Maranao, Tausug,

Yakan/Samal, and Iranon. 4 3

How these indigenous peoples came to live in the Philippines goes back to as early as
25,000 to 30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely
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 by the Negritos, Indonesians and Malays. 4 4 The strains from these groups eventually gave
rise to common cultural features which became the dominant in uence in ethnic
reformulation in the archipelago. In uences from the Chinese and Indian civilizations in the
third or fourth millennium B.C. augmented these ethnic strains. Chinese economic and
socio-cultural in uences came by way of Chinese porcelain, silk and traders. Indian
influence found their way into the religious-cultural aspect of pre-colonial society. 4 5
The ancient Filipinos settled beside bodies of water. Hunting and food gathering
became supplementary activities as reliance on them was reduced by shing and the
cultivation of the soil. 4 6 From the hinterland, coastal, and riverine communities, our
ancestors evolved an essentially homogeneous culture, a basically common way of life
where nature was a primary factor. Community life throughout the archipelago was
in uenced by, and responded to, common ecology. The generally benign tropical climate
and the largely uniform ora and fauna favored similarities, not differences. 4 7 Life was
essentially subsistence but not harsh. 4 8
The early Filipinos had a culture that was basically Malayan in structure and form.
They had languages that traced their origin to the Austronesian parent-stock and used
them not only as media of daily communication but also as vehicles for the expression of
their literary moods. 4 9 They fashioned concepts and beliefs about the world that they
could not see, but which they sensed to be part of their lives. 5 0 They had their own religion
and religious beliefs. They believed in the immortality of the soul and life after death. Their
rituals were based on beliefs in a ranking deity whom they called Bathalang Maykapal, and
a host of other deities, in the environmental spirits and in soul spirits. The early Filipinos
adored the sun, the moon, the animals and birds, for they seemed to consider the objects
of Nature as something to be respected. They venerated almost any object that was close
to their daily life, indicating the importance of the relationship between man and the object
of nature. 5 1
The unit of government was the "barangay," a term that derived its meaning from the
Malay word "balangay," meaning, a boat, which transported them to these shores. 5 2 The
barangay was basically a family-based community and consisted of thirty to one hundred
families. Each barangay was different and ruled by a chieftain called a "dato." It was the
chieftain's duty to rule and govern his subjects and promote their welfare and interests. A
chieftain had wide powers for he exercised all the functions of government. He was the
executive, legislator and judge and was the supreme commander in time of war. 5 3
Laws were either customary or written. Customary laws were handed down orally
from generation to generation and constituted the bulk of the laws of the barangay. They
were preserved in songs and chants and in the memory of the elder persons in the
community. 5 4 The written laws were those that the chieftain and his elders promulgated
from time to time as the necessity arose. 5 5 The oldest known written body of laws was
the Maragtas Code by Datu Sumakwel at about 1750 A.D. Other old codes are the Muslim
Code of Luwaran and the Principal Code of Sulu. 5 6 Whether customary or written, the laws
dealt with various subjects, such as inheritance, divorce, usury, loans, partnership, crime
and punishment, property rights, family relations and adoption. Whenever disputes arose,
these were decided peacefully through a court composed by the chieftain as "judge" and
the barangay elders as "jury." Con icts arising between subjects of different barangays
were resolved by arbitration in which a board composed of elders from neutral barangays
acted as arbiters. 5 7
Baranganic society had a distinguishing feature: the absence of private property in
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 land. The chiefs merely administered the lands in the name of the barangay. The social
order was an extension of the family with chiefs embodying the higher unity of the
community. Each individual, therefore, participated in the community ownership of the soil
and the instruments of production as a member of the barangay. 5 8 This ancient
communalism was practiced in accordance with the concept of mutual sharing of
resources so that no individual, regardless of status, was without sustenance. Ownership
of land was non-existent or unimportant and the right of usufruct was what regulated the
development of lands. 5 9 Marine resources and shing grounds were likewise free to all.
Coastal communities depended for their economic welfare on the kind of shing sharing
concept similar to those in land communities. 6 0 Recognized leaders, such as the
chieftains and elders, by virtue of their positions of importance, enjoyed some economic
privileges and bene ts. But their rights, related to either land and sea, were subject to their
responsibility to protect the communities from danger and to provide them with the
leadership and means of survival. 6 1
Sometime in the 13th century, Islam was introduced to the archipelago in
Maguindanao. The Sultanate of Sulu was established and claimed jurisdiction over
territorial areas represented today by Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga.
Four ethnic groups were within this jurisdiction: Sama, Tausug, Yakan and Subanon. 6 2 The
Sultanate of Maguindanao spread out from Cotabato toward Maranao territory, now Lanao
del Norte and Lanao del Sur. 6 3
The Muslim societies evolved an Asiatic form of feudalism where land was still held
in common but was private in use. This is clearly indicated in the Muslim Code of Luwaran.
The Code contains a provision on the lease of cultivated lands. It, however, has no
provision for the acquisition, transfer, cession or sale of land." 6 4
The societies encountered by Magellan and Legaspi therefore were primitive
economies where most production was geared to the use of the producers and to the
ful llment of kinship obligations. They were not economies geared to exchange and pro t.
6 5 Moreover, the family basis of barangay membership as well as of leadership and
governance worked to splinter the population of the islands into numerous small and
separate communities. 6 6
When the Spaniards settled permanently in the Philippines in 1565, they found the
Filipinos living in barangay settlements scattered along water routes and river banks. One
of the rst tasks imposed on the missionaries and the encomenderos was to collect all
scattered Filipinos together in a reduccion. 6 7 As early as 1551, the Spanish government
assumed an unvarying solicitous attitude towards the natives. 6 8 The Spaniards regarded it
a sacred "duty to conscience and humanity to civilize these less fortunate people living in
the obscurity of ignorance" and to accord them the "moral and material advantages" of
community life and the "protection and vigilance afforded them by the same laws." 6 9
The Spanish missionaries were ordered to establish pueblos where the church and
convent would be constructed. All the new Christian converts were required to construct
their houses around the church and the unbaptized were invited to do the same. 7 0 With the
reduccion, the Spaniards attempted to "tame" the reluctant Filipinos through Christian
indoctrination using the convento/casa real/plaza complex as focal point. The reduccion,
to the Spaniards, was a "civilizing" device to make the Filipinos law-abiding citizens of the
Spanish Crown, and in the long run, to make them ultimately adopt Hispanic culture and
civilization. 7 1
All lands lost by the old barangays in the process of pueblo organization as well as
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 all lands not assigned to them and the pueblos, were now declared to be crown lands or
realengas, belonging to the Spanish king. It was from the realengas that land grants were
made to non-Filipinos. 7 2
The abrogation of the Filipinos' ancestral rights in land and the introduction of the
concept of public domain were the most immediate fundamental results of Spanish
colonial theory and law. 7 3 The concept that the Spanish king was the owner of everything
of value in the Indies or colonies was imposed on the natives, and the natives were
stripped of their ancestral rights to land. 7 4
Increasing their foothold in the Philippines, the Spanish colonialists, civil and
religious, classi ed the Filipinos according to their religious practices and beliefs, and
divided them into three types. First were the Indios, the Christianized Filipinos, who
generally came from the lowland populations. Second, were the Moros or the Muslim
communities, and third, were the infieles or the indigenous communities. 7 5
The Indio was a product of the advent of Spanish culture. This class was favored by
the Spaniards and was allowed certain status although below the Spaniards. The Moros
and infieles were regarded as the lowest classes. 7 6
The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven
from Manila and the Visayas to Mindanao; while the in eles, to the hinterlands . The
Spaniards did not pursue them into the deep interior. The upland societies were naturally
outside the immediate concern of Spanish interest, and the cliffs and forests of the
hinterlands were di cult and inaccessible, allowing the infieles, in effect, relative security.
7 7 Thus, the infieles, which were peripheral to colonial administration, were not only able to
preserve their own culture but also thwarted the Christianization process, separating
themselves from the newly evolved Christian community. 7 8 Their own political, economic
and social systems were kept constantly alive and vibrant. SIcEHD

The pro-Christian or pro-Indio attitude of colonialism brought about a generally

mutual feeling of suspicion, fear, and hostility between the Christians on the one hand and
the non-Christians on the other. Colonialism tended to divide and rule an otherwise
culturally and historically related populace through a colonial system that exploited both
the virtues and vices of the Filipinos. 7 9
President McKinley, in his instructions to the Philippine Commission of April 7, 1900,
addressed the existence of the infieles:
"In dealing with the uncivilized tribes of the Islands, the Commission
should adopt the same course followed by Congress in permitting the tribes of
our North American Indians to maintain their tribal organization and government,
and under which many of those tribes are now living in peace and contentment,
surrounded by civilization to which they are unable or unwilling to conform. Such
tribal government should, however, be subjected to wise and rm regulation; and,
without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs." 8 0

Placed in an alternative of either letting the natives alone or guiding them in the path of
civilization, the American government chose "to adopt the latter measure as one more
in accord with humanity and with the national conscience." 8 1
The Americans classi ed the Filipinos into two: the Christian Filipinos and the non-
Christian Filipinos. The term "non-Christian" referred not to religious belief, but to a
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 geographical area, and more directly, "to natives of the Philippine Islands of a low grade of
civilization, usually living in tribal relationship apart from settled communities." 8 2
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they
passed Act No. 253 creating the Bureau of Non-Christian Tribes (BNCT) . Under the
Department of the Interior, the BNCT's primary task was to conduct ethnographic research
among unhispanized Filipinos, including those in Muslim Mindanao, with a "special view to
determining the most practicable means for bringing about their advancement in
civilization and prosperity." The BNCT was modeled after the bureau dealing with American
Indians. The agency took a keen anthropological interest in Philippine cultural minorities
and produced a wealth of valuable materials about them. 8 3
The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The
raging issue then was the conservation of the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a
more rapid and complete manner the economic, social, moral and political advancement of
the non-Christian Filipinos or national cultural minorities and to render real, complete, and
permanent the integration of all said national cultural minorities into the body politic,
creating the Commission on National Integration charged with said functions." The law
called for a policy of integration of indigenous peoples into the Philippine mainstream and
for this purpose created the Commission on National Integration (CNI). 8 4 The CNI was
given, more or less, the same task as the BNCT during the American regime. The post-
independence policy of integration was like the colonial policy of assimilation understood
in the context of a guardian-ward relationship. 8 5
The policy of assimilation and integration did not yield the desired result. Like the
Spaniards and Americans, government attempts at integration met with erce resistance .
Since World War II, a tidal wave of Christian settlers from the lowlands of Luzon and the
Visayas swamped the highlands and wide open spaces in Mindanao. 8 6 Knowledge by the
settlers of the Public Land Acts and the Torrens system resulted in the titling of several
ancestral lands in the settlers' names. With government initiative and participation, this
titling displaced several indigenous peoples from their lands. Worse, these peoples were
also displaced by projects undertaken by the national government in the name of national
development. 8 7
It was in the 1973 Constitution that the State adopted the following provision: EHSIcT

"The State shall consider the customs, traditions, beliefs, and interests of
national cultural communities in the formulation and implementation of State
policies." 8 8

For the rst time in Philippine history, the "non-Christian tribes" or the "cultural
minorities" were addressed by the highest law of the Republic, and they were referred to as
"cultural communities." More importantly this time, their "uncivilized" culture was given
some recognition and their "customs, traditions, beliefs and interests" were to be
considered by the State in the formulation and implementation of State policies. President
Marcos abolished the CNI and transferred its functions to the Presidential Adviser on
National Minorities (PANAMIN) . The PANAMIN was tasked to integrate the ethnic groups
that sought full integration into the larger community, and at the same time "protect the
rights of those who wish to preserve their original lifeways beside the larger community."
8 9 In short, while still adopting the integration policy, the decree recognized the right of
tribal Filipinos to preserve their way of life. 9 0
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 In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the
Ancestral Lands Decree. The decree provided for the issuance of land occupancy
certi cates to members of the national cultural communities who were given up to 1984
to register their claims. 9 1 In 1979, the Commission on the Settlement of Land Problems
was created under E.O. No. 561 which provided a mechanism for the expeditious
resolution of land problems involving small settlers, landowners, and tribal Filipinos. 9 2
Despite the promulgation of these laws, from 1974 to the early 1980's, some
100,000 Kalingas and Bontoks of the Cordillera region were displaced by the Chico River
dam project of the National Power Corporation (NPC). The Manobos of Bukidnon saw
their land bulldozed by the Bukidnon Sugar Industries Company (BUSCO). In Agusan del
Sur, the National Development Company was authorized by law in 1979 to take
approximately 40,550 hectares of land that later became the NDC-Guthrie plantation in
Agusan del Sur. Most of the land was possessed by the Agusan natives. 9 3 Timber
concessions, water projects, plantations, mining, and cattle ranching and other projects of
the national government led not only to the eviction of the indigenous peoples from their
land but also to the reduction and destruction of their natural environment. 9 4
The Aquino government signi ed a total shift from the policy of integration to one of
preservation. Invoking her powers under the Freedom Constitution, President Aquino
created the O ce of Muslim Affairs , O ce for Northern Cultural Communities and the
Office for Southern Cultural Communities all under the Office of the President. 9 5
The 1987 Constitution carries at least six (6) provisions which insure the right of
tribal Filipinos to preserve their way of life. 9 6 This Constitution goes further than the 1973
Constitution by expressly guaranteeing the rights of tribal Filipinos to their ancestral
domains and ancestral lands. By recognizing their right to their ancestral lands and
domains, the State has effectively upheld their right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino
mainstream. They are non-Christians. They live in less accessible, marginal, mostly upland
areas. They have a system of self-government not dependent upon the laws of the central
administration of the Republic of the Philippines. They follow ways of life and customs that
are perceived as different from those of the rest of the population. 9 7 The kind of response
the indigenous peoples chose to deal with colonial threat worked well to their advantage
by making it di cult for Western concepts and religion to erode their customs and
traditions. The "in eles societies" which had become peripheral to colonial administration,
represented, from a cultural perspective, a much older base of archipelagic culture. The
political systems were still structured on the patriarchal and kinship oriented arrangement
of power and authority. The economic activities were governed by the concepts of an
ancient communalism and mutual help. The social structure which emphasized division of
labor and distinction of functions, not status, was maintained. The cultural styles and
forms of life portraying the varieties of social courtesies and ecological adjustments were
kept constantly vibrant. 9 8
Land is the central element of the indigenous peoples existence. There is no
traditional concept of permanent, individual, land ownership. Among the Igorots,
ownership of land more accurately applies to the tribal right to use the land or to territorial
control. The people are the secondary owners or stewards of the land and that if a
member of the tribe ceases to work, he loses his claim of ownership, and the land reverts
to the beings of the spirit world who are its true and primary owners. Under the concept of
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 "trusteeship," the right to possess the land does not only belong to the present generation
but the future ones as well. 9 9
Customary law on land rests on the traditional belief that no one owns the land
except the gods and spirits, and that those who work the land are its mere stewards. 1 0 0
Customary law has a strong preference for communal ownership, which could either be
ownership by a group of individuals or families who are related by blood or by marriage,
1 0 1 or ownership by residents of the same locality who may not be related by blood or
marriage. The system of communal ownership under customary laws draws its meaning
from the subsistence and highly collectivized mode of economic production. The Kalingas,
for instance, who are engaged in team occupation like hunting, foraging for forest
products, and swidden farming found it natural that forest areas, swidden farms, orchards,
pasture and burial grounds should be communally-owned. 1 0 2 For the Kalingas, everybody
has a common right to a common economic base. Thus, as a rule, rights and obligations to
the land are shared in common.
Although highly bent on communal ownership, customary law on land also sanctions
individual ownership. The residential lots and terrace rice farms are governed by a limited
system of individual ownership. It is limited because while the individual owner has the
right to use and dispose of the property, he does not possess all the rights of an exclusive
and full owner as de ned under our Civil Code. 1 0 3 Under Kalinga customary law, the
alienation of individually-owned land is strongly discouraged except in marriage and
succession and except to meet sudden financial needs due to sickness, death in the family,
or loss of crops. 1 0 4 Moreover, land to be alienated should rst be offered to a clan-
member before any village-member can purchase it, and in no case may land be sold to a
non-member of the ili. 1 0 5
Land titles do not exist in the indigenous peoples' economic and social system. The
concept of individual land ownership under the civil law is alien to them. Inherently colonial
in origin, our national land laws and governmental policies frown upon indigenous claims
to ancestral lands. Communal ownership is looked upon as inferior, if not inexistent. 1 0 6
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine indigenous peoples that
the Tenth Congress of the Philippines, by their joint efforts, passed and approved R.A. No.
8371, the Indigenous Peoples Rights Act (IPRA) of 1997. The law was a consolidation of
two Bills — Senate Bill No. 1728 and House Bill No. 9125. SCIAaT

Principally sponsored by Senator Juan M. Flavier, 1 0 7 Senate Bill No. 1728 was a
consolidation of four proposed measures referred to the Committees on Cultural
Communities, Environment and Natural Resources, Ways and Means, as well as Finance. It
adopted almost en toto the comprehensive version of Senate Bill Nos. 1476 and 1486
which was a result of six regional consultations and one national consultation with
indigenous peoples nationwide. 1 0 8 At the Second Regular Session of the Tenth Congress,
Senator Flavier, in his sponsorship speech, gave a background on the situation of
indigenous peoples in the Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro, have
long suffered from the dominance and neglect of government controlled by the
majority. Massive migration of their Christian brothers to their homeland shrunk
their territory and many of the tribal Filipinos were pushed to the hinterlands.
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 Resisting the intrusion, dispossessed of their ancestral land and with the massive
exploitation of their natural resources by the elite among the migrant population,
they became marginalized. And the government has been an indispensable party
to this insidious conspiracy against the Indigenous Cultural Communities (ICCs).
It organized and supported the resettlement of people to their ancestral land,
which was massive during the Commonwealth and early years of the Philippine
Republic. Pursuant to the Regalian Doctrine rst introduced to our system by
Spain through the Royal Decree of 13 February 1894 or the Maura Law, the
government passed laws to legitimize the wholesale landgrabbing and provide for
easy titling or grant of lands to migrant homesteaders within the traditional areas
of the ICCs." 1 0 9

Senator Flavier further declared:

"The IPs are the offsprings and heirs of the peoples who have rst
inhabited and cared for the land long before any central government was
established. Their ancestors had territories over which they ruled themselves and
related with other tribes. These territories — the land — include people, their
dwelling, the mountains, the water, the air, plants, forest and the animals. This is
their environment in its totality. Their existence as indigenous peoples is
manifested in their own lives through political, economic, socio-cultural and
spiritual practices. The IPs culture is the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their
rights to it; and depending on it. Otherwise, IPs shall cease to exist as distinct
peoples." 1 1 0

To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed
a bill based on two postulates: (1) the concept of native title; and (2) the principle of
parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian
Doctrine reinstated in Section 2, Article XII of the 1987 Constitution," our "decisional laws"
and jurisprudence passed by the State have "made exception to the doctrine." This
exception was first laid down in the case of Cariño v. Insular Government where:
". . . the court has recognized long occupancy of land by an indigenous member of the
cultural communities as one of private ownership, which, in legal concept, is termed "native title."
This ruling has not been overturned. In fact, it was affirmed in subsequent cases." 1 1 1

Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705,
P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous Region of Muslim
Mindanao). These laws, explicitly or implicitly, and liberally or restrictively, recognized
"native title" or "private right" and the existence of ancestral lands and domains. Despite
the passage of these laws, however, Senator Flavier continued:
". . . the executive department of government since the American occupation has not
implemented the policy. In fact, it was more honored in its breach than in its observance, its
wanton disregard shown during the period unto the Commonwealth and the early years of the
Philippine Republic when government organized and supported massive resettlement of the
people to the land of the ICCs." cHECAS

Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess
their ancestral land. The bill was prepared also under the principle of parens patriae
inherent in the supreme power of the State and deeply embedded in Philippine legal
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 tradition. This principle mandates that persons suffering from serious disadvantage or
handicap, which places them in a position of actual inequality in their relation or
transaction with others, are entitled to the protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators
voting in favor and none against, with no abstention." 1 1 2
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on
Cultural Communities. It was originally authored and subsequently presented and
defended on the floor by Rep . Gregorio Andolana of North Cotabato. 1 1 3
Rep. Andolana's sponsorship speech reads as follows:
"This Representation, as early as in the 8th Congress, led a bill of similar
implications that would promote, recognize the rights of indigenous cultural
communities within the framework of national unity and development.
Apart from this, Mr. Speaker, is our obligation, the government's obligation
to assure and ascertain that these rights shall be well-preserved and the cultural
traditions as well as the indigenous laws that remained long before this Republic
was established shall be preserved and promoted. There is a need, Mr. Speaker, to
look into these matters seriously and early approval of the substitute bill shall
bring into reality the aspirations, the hope and the dreams of more than 12 million
Filipinos that they be considered in the mainstream of the Philippine society as
we fashion for the year 2000." 1 1 4

Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as
mandated in the Constitution. He also emphasized that the rights of IPs to their land was
enunciated in Cariño v.Insular Government which recognized the fact that they had vested
rights prior to the establishment of the Spanish and American regimes. 1 1 5
After exhaustive interpellation, House Bill No. 9125, and its corresponding
amendments, was approved on Second Reading with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous
Peoples and Do Not Constitute Part of the Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains
and ancestral lands. Ancestral lands are not the same as ancestral domains. These are
defined in Section 3 [a] and [b] of the Indigenous Peoples Right Act, viz:
"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 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
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 but from which they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators;
b) Ancestral Lands. — Subject to Section 56 hereof, refers to land
occupied, possessed and utilized by individuals, families and clans who are
members of the ICCs/IPs since time immemorial, by themselves or through their
predecessors-in-interest, under claims of individual or traditional group ownership,
continuously, to the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth, or as a consequence of government
projects and other voluntary dealings entered into by government and private
individuals/corporations, including, but not limited to, residential lots, rice terraces
or paddies, private forests, swidden farms and tree lots." THIcCA

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of
ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors,
communally or individually since time immemorial, continuously until the present, except
when interrupted by war, force majeure or displacement by force, deceit, stealth or as a
consequence of government projects or any other voluntary dealings with government
and/or private individuals or corporations. Ancestral domains comprise lands, inland
waters, coastal areas, and natural resources therein and includes ancestral lands, forests,
pasture, residential, agricultural, and other lands individually owned whether alienable or
not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other
natural resources. They also include lands which may no longer be exclusively occupied by
ICCs/IPs but from which they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or
shifting cultivators. 1 1 6
Ancestral lands are lands held by the ICCs/IPs under the same conditions as
ancestral domains except that these are limited to lands and that these lands are not
merely occupied and possessed but are also utilized by the ICCs/IPs under claims of
individual or traditional group ownership. These lands include but are not limited to
residential lots, rice terraces or paddies, private forests, swidden farms and tree lots. 1 1 7
The procedures for claiming ancestral domains and lands are similar to the
procedures embodied in Department Administrative Order (DAO) No. 2, series of 1993,
signed by then Secretary of the Department of Environment and Natural Resources (DENR)
Angel Alcala. 1 1 8 DAO No. 2 allowed the delineation of ancestral domains by special task
forces and ensured the issuance of Certi cates of Ancestral Land Claims (CALC's) and
Certificates of Ancestral Domain Claims (CADC's) to IPs.
The identi cation and delineation of these ancestral domains and lands is a power
conferred by the IPRA on the National Commission on Indigenous Peoples (NCIP). 1 1 9 The
guiding principle in identification and delineation is self-delineation. 1 2 0 This means that the
ICCs/IPs have a decisive role in determining the boundaries of their domains and in all the
activities pertinent thereto. 1 2 1
The procedure for the delineation and recognition of ancestral domains is set forth
in Sections 51 and 52 of the IPRA. The identi cation, delineation and certi cation of
ancestral lands is in Section 53 of said law.
Upon due application and compliance with the procedure provided under the law
and upon nding by the NCIP that the application is meritorious, the NCIP shall issue a
Certi cate of Ancestral Domain Title (CADT) in the name of the community concerned. 1 2 2
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 The allocation of lands within the ancestral domain to any individual or indigenous
corporate (family or clan) claimants is left to the ICCs/IPs concerned to decide in
accordance with customs and traditions. 1 2 3 With respect to ancestral lands outside the
ancestral domain, the NCIP issues a Certificate of Ancestral Land Title (CALT). 1 2 4
CADTs and CALTs issued under the IPRA shall be registered by the NCIP before the
Register of Deeds in the place where the property is situated. 1 2 5
(1) Right to Ancestral Domains and Ancestral Lands: How Acquired
The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be
acquired in two modes: (1) by native title over both ancestral lands and domains; or (2) by
torrens title under the Public Land Act and the Land Registration Act with respect to
ancestral lands only.
(2) The Concept of Native Title
Native title is defined as:
"SECTION 3 [1]. 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." 1 2 6

Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a
claim of private ownership as far back as memory reaches. These lands are deemed
never to have been public lands and are indisputably presumed to have been held that
way since before the Spanish Conquest. The rights of ICCs/IPs to their ancestral
domains (which also include ancestral lands) by virtue of native title shall be recognized
and respected. 1 2 7 Formal recognition, when solicited by ICCs/IPs concerned, shall be
embodied in a Certi cate of Ancestral Domain Title (CADT), which shall recognize the
title of the concerned ICCs/IPs over the territories identified and delineated. 1 2 8
Like a torrens title, a CADT is evidence of private ownership of land by native title.
Native title, however, is a right of private ownership peculiarly granted to ICCs/IPs over
their ancestral lands and domains. The IPRA categorically declares ancestral lands and
domains held by native title as never to have been public land. Domains and lands held
under native title are, therefore, indisputably presumed to have never been public lands and
are private. HcaDTE

(a) Cariño v. Insular Government 1 2 9

The concept of native title in the IPRA was taken from the 1909 case of Cariño v.
Insular Government. 1 3 0 Cariño rmly established a concept of private land title that
existed irrespective of any royal grant from the State.
In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land registration
court 146 hectares of land in Baguio Municipality, Benguet Province. He claimed that this
land had been possessed and occupied by his ancestors since time immemorial; that his
grandfather built fences around the property for the holding of cattle and that his father
cultivated some parts of the land. Cariño inherited the land in accordance with Igorot
custom. He tried to have the land adjusted under the Spanish land laws, but no document
issued from the Spanish Crown. 1 3 1 In 1901, Cariño obtained a possessory title to the land
under the Spanish Mortgage Law. 1 3 2 The North American colonial government, however,
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 ignored his possessory title and built a public road on the land prompting him to seek a
Torrens title to his property in the land registration court. While his petition was pending, a
U.S. military reservation 1 3 3 was proclaimed over his land and, shortly thereafter, a military
detachment was detailed on the property with orders to keep cattle and trespassers,
including Cariño, off the land. 1 3 4
In 1904, the land registration court granted Cariño's application for absolute
ownership to the land. Both the Government of the Philippine Islands and the U.S.
Government appealed to the C.F.I. of Benguet which reversed the land registration court
and dismissed Cariño's application. The Philippine Supreme Court 1 3 5 a rmed the C.F.I. by
applying the Valenton ruling. Cariño took the case to the U.S. Supreme Court. 1 3 6 On one
hand, the Philippine government invoked the Regalian doctrine and contended that Cariño
failed to comply with the provisions of the Royal Decree of June 25, 1880, which required
registration of land claims within a limited period of time. Cariño, on the other, asserted
that he was the absolute owner of the land jure gentium, and that the land never formed
part of the public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme
Court held:
"It is true that Spain, in its earlier decrees, embodied the universal feudal
theory that all lands were held from the Crown, and perhaps the general attitude
of conquering nations toward people not recognized as entitled to the treatment
accorded to those in the same zone of civilization with themselves. It is true, also,
that in legal theory, sovereignty is absolute, and that, as against foreign nations,
the United States may assert, as Spain asserted, absolute power. But it does not
follow that, as against the inhabitants of the Philippines, the United States asserts
that Spain had such power. When theory is left on one side, sovereignty is a
question of strength, and may vary in degree. How far a new sovereign shall insist
upon the theoretical relation of the subjects to the head in the past, and how far it
shall recognize actual facts, are matters for it to decide." 1 3 7

The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice
was with the new colonizer. Ultimately, the matter had to be decided under U.S. law.
The Cariño decision largely rested on the North American constitutionalist's concept
of "due process" as well as the pronounced policy "to do justice to the natives." 1 3 8 It was
based on the strong mandate extended to the Islands via the Philippine Bill of 1902 that
"No law shall be enacted in said islands which shall deprive any person of life, liberty, or
property without due process of law, or deny to any person therein the equal protection of
the laws." The court declared:
"The acquisition of the Philippines was not like the settlement of the white
race in the United States. Whatever consideration may have been shown to the
North American Indians, the dominant purpose of the whites in America was to
occupy land. It is obvious that, however stated, the reason for our taking over the
Philippines was different. No one, we suppose, would deny that, so far as
consistent with paramount necessities, our rst object in the internal
administration of the islands is to do justice to the natives, not to exploit their
country for private gain. By the Organic Act of July 1, 1902, chapter 1369, section
12 (32 Statutes at Large, 691), all the property and rights acquired there by the
United States are to be administered 'for the bene t of the inhabitants thereof.' It
is reasonable to suppose that the attitude thus assumed by the United States with
regard to what was unquestionably its own is also its attitude in deciding what it
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 will claim for its own. The same statute made a bill of rights, embodying the
safeguards of the Constitution, and, like the Constitution, extends those
safeguards to all. It provides that 'no law shall be enacted in said islands which
shall deprive any person of life, liberty, or property without due process of law, or
deny to any person therein the equal protection of the laws.' In the light of the
declaration that we have quoted from Section 12, it is hard to believe that the
United States was ready to declare in the next breath that "any person" did not
embrace the inhabitants of Benguet, or that it meant by "property" only that which
had become such by ceremonies of which presumably a large part of the
inhabitants never had heard, and that it proposed to treat as public land what
they, by native custom and by long association, — of the profoundest factors in
human thought, — regarded as their own." 1 3 9

The Court went further:

"[E]very presumption is and ought to be against the government in a case like the present.
It might, perhaps, be proper and su cient to say that when, as far back as testimony or memory
goes, the land has been held by individuals under a claim of private ownership, it will be
presumed to have been held in the same way from before the Spanish conquest, and never to
have been public land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish
law, we ought to give the applicant the benefit of the doubt." 1 4 0

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

Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees
upheld in the 1904 decision of Valenton v. Murciano. The U.S. Supreme Court found no
proof that the Spanish decrees did not honor native title. On the contrary, the decrees
discussed in Valenton appeared to recognize that the natives owned some land,
irrespective of any royal grant. The Regalian doctrine declared in the preamble of the
Recopilacion was all "theory and discourse" and it was observed that titles were admitted
to exist beyond the powers of the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do not discover
such clear proof that it was bad by that law as to satisfy us that he does not own
the land. To begin with, the older decrees and laws cited by the counsel for the
plaintiff in error seem to indicate pretty clearly that the natives were recognized as
owning some lands, irrespective of any royal grant. In other words, Spain did not
assume to convert all the native inhabitants of the Philippines into trespassers or
even into tenants at will. For instance, Book 4, title 12, Law 14 of the Recopilacion
de Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano , 3
Philippine 537, while it commands viceroys and others, when it seems proper, to
call for the exhibition of grants, directs them to con rm those who hold by good
grants or justa prescripcion. It is true that it begins by the characteristic assertion
of feudal overlordship and the origin of all titles in the King or his predecessors.
That was theory and discourse. The fact was that titles were admitted to exist
that owed nothing to the powers of Spain beyond this recognition in their books."
(Italics supplied). 1 4 1

The court further stated that the Spanish "adjustment" proceedings never held sway
over unconquered territories. The wording of the Spanish laws were not framed in a
manner as to convey to the natives that failure to register what to them has always been
their own would mean loss of such land. The registration requirement was "not to confer
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 title, but simply to establish it;" it was "not calculated to convey to the mind of an Igorot
chief the notion that ancient family possessions were in danger, if he had read every word
of it."
By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton.
It was frank enough, however, to admit the possibility that the applicant might have been
deprived of his land under Spanish law because of the inherent ambiguity of the decrees
and concomitantly, the various interpretations which may be given them. But precisely
because of the ambiguity and of the strong "due process mandate" of the Constitution, the
court validated this kind of title. 1 4 2 This title was su cient, even without government
administrative action, and entitled the holder to a Torrens certi cate. Justice Holmes
explained:
"It will be perceived that the rights of the applicant under the Spanish law
present a problem not without di culties for courts of a legal tradition. We have
deemed it proper on that account to notice the possible effect of the change of
sovereignty and the act of Congress establishing the fundamental principles now
to be observed. Upon a consideration of the whole case we are of the opinion that
law and justice require that the applicant should be granted what he seeks, and
should not be deprived of what, by the practice and belief of those among whom
he lived, was his property, through a re ned interpretation of an almost forgotten
law of Spain." 1 4 3

Thus, the court ruled in favor of Cariño and ordered the registration of the 148
hectares in Baguio Municipality in his name. 1 4 4
Examining Cariño closer, the U.S. Supreme Court did not categorically refer to the
title it upheld as "native title." It simply said:
"The Province of Benguet was inhabited by a tribe that the Solicitor-
General, in his argument, characterized as a savage tribe that never was brought
under the civil or military government of the Spanish Crown. It seems probable, if
not certain, that the Spanish o cials would not have granted to anyone in that
province the registration to which formerly the plaintiff was entitled by the
Spanish Laws, and which would have made his title beyond question good.
Whatever may have been the technical position of Spain it does not follow that, in
the view of the United States, he had lost all rights and was a mere trespasser
when the present government seized his land. The argument to that effect seems
to amount to a denial of native titles through an important part of the Island of
Luzon, at least, for the want of ceremonies which the Spaniards would not have
permitted and had not the power to enforce." 1 4 5

This is the only instance when Justice Holmes used the term "native title" in the entire
length of the Cariño decision. It is observed that the widespread use of the term "native
title" may be traced to Professor Owen James Lynch, Jr., a Visiting Professor at the
University of the Philippines College of Law from the Yale University Law School. In
1982, Prof. Lynch published an article in the Philippine Law Journal entitled Native Title,
Private Right and Tribal Land Law . 1 4 6 This article was made after Professor Lynch
visited over thirty tribal communities throughout the country and studied the origin and
development of Philippine land laws. 1 4 7 He discussed Cariño extensively and used the
term "native title" to refer to Cariño's title as discussed and upheld by the U.S. Supreme
Court in said case. aDSTIC

(b) Indian Title

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 In a footnote in the same article, Professor Lynch stated that the concept of "native
title" as de ned by Justice Holmes in Cariño is conceptually similar to "aboriginal title" of
the American Indians. 1 4 8 This is not surprising, according to Prof. Lynch, considering that
during the American regime, government policy towards ICCs/IPs was consistently made
in reference to native Americans. 1 4 9 This was clearly demonstrated in the case of Rubi v.
Provincial Board of Mindoro. 1 5 0
I n Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the
provincial governor to remove the Mangyans from their domains and place them in a
permanent reservation in Sitio Tigbao, Lake Naujan. Any Mangyan who refused to comply
was to be imprisoned. Rubi and some Mangyans, including one who was imprisoned for
trying to escape from the reservation, led for habeas corpus claiming deprivation of
liberty under the Board Resolution. This Court denied the petition on the ground of police
power. It upheld government policy promoting the idea that a permanent settlement was
the only successful method for educating the Mangyans, introducing civilized customs,
improving their health and morals, and protecting the public forests in which they roamed.
1 5 1 Speaking through Justice Malcolm, the court said:

"Reference was made in the President's instructions to the Commission to

the policy adopted by the United States for the Indian Tribes. The methods
followed by the Government of the Philippine Islands in its dealings with the so-
called non-Christian people is said, on argument, to be practically identical with
that followed by the United States Government in its dealings with the Indian
tribes. Valuable lessons, it is insisted, can be derived by an investigation of the
American-Indian policy.
From the beginning of the United States, and even before, the Indians have
been treated as "in a state of pupilage." The recognized relation between the
Government of the United States and the Indians may be described as that of
guardian and ward. It is for the Congress to determine when and how the
guardianship shall be terminated. The Indians are always subject to the plenary
authority of the United States. 1 5 2
xxx xxx xxx.

As to the second point, the facts in the Standing Bear case and the Rubi
case are not exactly identical. But even admitting similarity of facts, yet it is
known to all that Indian reservations do exist in the United States, that Indians
have been taken from different parts of the country and placed on these
reservations, without any previous consultation as to their own wishes, and that,
when once so located, they have been made to remain on the reservation for their
own good and for the general good of the country. If any lesson can be drawn
from the Indian policy of the United States, it is that the determination of this
policy is for the legislative and executive branches of the government and that
when once so decided upon, the courts should not interfere to upset a carefully
planned governmental system. Perhaps, just as many forceful reasons exist for
the segregation of the Manguianes in Mindoro as existed for the segregation of
the different Indian tribes in the United States." 1 5 3

Rubi applied the concept of Indian land grants or reservations in the Philippines. An
Indian reservation is a part of the public domain set apart by proper authority for the
use and occupation of a tribe or tribes of Indians. 1 5 4 It may be set apart by an act of
Congress, by treaty, or by executive order, but it cannot be established by custom and
prescription. 1 5 5
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 Indian title to land, however, is not limited to land grants or reservations. It also
covers the "aboriginal right of possession or occupancy. " 1 5 6 The aboriginal right of
possession depends on the actual occupancy of the lands in question by the tribe or
nation as their ancestral home; in the sense that such lands constitute de nable territory
occupied exclusively by the particular tribe or nation. 1 5 7 It is a right which exists apart
from any treaty, statute, or other governmental action, although in numerous instances
treaties have been negotiated with Indian tribes, recognizing their aboriginal possession
and delimiting their occupancy rights or settling and adjusting their boundaries. 1 5 8
American jurisprudence recognizes the Indians' or native Americans' rights to land
they have held and occupied before the "discovery" of the Americas by the Europeans. The
earliest definitive statement by the U.S. Supreme Court on the nature of aboriginal title was
made in 1823 in Johnson & Graham's Lessee v. M'Intosh. 1 5 9
In Johnson, the plaintiffs claimed the land in question under two (2) grants made by
the chiefs of two (2) Indian tribes. The U.S. Supreme Court refused to recognize this
conveyance, the plaintiffs being private persons. The only conveyance that was recognized
was that made by the Indians to the government of the European discoverer. Speaking for
the court, Chief Justice Marshall pointed out that the potentates of the old world believed
that they had made ample compensation to the inhabitants of the new world by bestowing
civilization and Christianity upon them; but in addition, said the court, they found it
necessary, in order to avoid con icting settlements and consequent war, to establish the
principle that discovery gives title to the government by whose subjects, or by whose
authority, the discovery was made, against all other European governments, which title
might be consummated by possession. 1 6 0 The exclusion of all other Europeans gave to
the nation making the discovery the sole right of acquiring the soil from the natives and
establishing settlements upon it. As regards the natives, the court further stated that:
"Those relations which were to exist between the discoverer and the
natives were to be regulated by themselves. The rights thus acquired being
exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants
were, in no instance, entirely disregarded; but were necessarily, to a considerable
extent, impaired. They were admitted to be the rightful occupants of the soil, with
a legal as well as just claim to retain possession of it, and to use it according to
their own discretion; but their rights to complete sovereignty, as independent
nations, were necessarily diminished, and their power to dispose of the soil at
their own will, to whomsoever they pleased, was denied by the fundamental
principle that discovery gave exclusive title to those who made it. IcHSCT

While the different nations of Europe respected the right of the natives as
occupants, they asserted the ultimate dominion to be in themselves; and claimed
and exercised, as a consequence of this ultimate dominion, a power to grant the
soil, while yet in possession of the natives. These grants have been understood by
all to convey a title to the grantees, subject only to the Indian right of occupancy."
161

Thus, the discoverer of new territory was deemed to have obtained the exclusive
right to acquire Indian land and extinguish Indian titles. Only to the discoverer — whether to
England, France, Spain or Holland — did this right belong and not to any other nation or
private person. The mere acquisition of the right nonetheless did not extinguish Indian
claims to land. Rather, until the discoverer, by purchase or conquest, exercised its right, the
concerned Indians were recognized as the "rightful occupants of the soil, with a legal as
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 well as just claim to retain possession of it." Grants made by the discoverer to her subjects
of lands occupied by the Indians were held to convey a title to the grantees, subject only to
the Indian right of occupancy. Once the discoverer purchased the land from the Indians or
conquered them, it was only then that the discoverer gained an absolute title unrestricted
by Indian rights.
The court concluded, in essence, that a grant of Indian lands by Indians could not
convey a title paramount to the title of the United States itself to other parties, saying:
"It has never been contended that the Indian title amounted to nothing.
Their right of possession has never been questioned. The claim of government
extends to the complete ultimate title, charged with this right of possession, and
to the exclusive power of acquiring that right." 1 6 2
It has been said that the history of America, from its discovery to the present day,
proves the universal recognition of this principle. 1 6 3
The Johnson doctrine was a compromise. It protected Indian rights and their native
lands without having to invalidate conveyances made by the government to many U.S.
citizens. 1 6 4
Johnson was reiterated in the case of Worcester v. Georgia. 1 6 5 In this case, the
State of Georgia enacted a law requiring all white persons residing within the Cherokee
nation to obtain a license or permit from the Governor of Georgia; and any violation of the
law was deemed a high misdemeanor. The plaintiffs, who were white missionaries, did not
obtain said license and were thus charged with a violation of the Act.
The U.S. Supreme Court declared the Act as unconstitutional for interfering with the
treaties established between the United States and the Cherokee nation as well as the
Acts of Congress regulating intercourse with them. It characterized the relationship
between the United States government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent on
some foreign potentate for the supply of their essential wants, and for their
protection from lawless and injurious intrusions into their country. That power
was naturally termed their protector. They had been arranged under the protection
of Great Britain; but the extinguishment of the British power in their neighborhood,
and the establishment of that of the United States in its place, led naturally to the
declaration, on the part of the Cherokees, that they were under the protection of
the United States, and of no other power. They assumed the relation with the
United States which had before subsisted with Great Britain.

This relation was that of a nation claiming and receiving the protection of
one more powerful, not that of individuals abandoning their national character,
and submitting as subjects to the laws of a master." 1 6 6

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

xxx xxx xxx.

"The Indian nations had always been considered as distinct, independent
political communities, retaining their original natural rights, as the undisputed
possessors of the soil from time immemorial, with the single exception of that
imposed by irresistible power, which excluded them from intercourse with any
other European potentate than the rst discoverer of the coast of the particular
region claimed: and this was a restriction which those European potentates
imposed on themselves, as well as on the Indians. The very term "nation," so
generally applied to them, means "a people distinct from others." . . . . 1 6 7
The Cherokee nation, then, is a distinct community, occupying its own
territory, with boundaries accurately described, in which the laws of Georgia can
have no force, and which the citizens of Georgia have no right to enter but with
the assent of the Cherokees themselves or in conformity with treaties and with the
acts of Congress. The whole intercourse between the United States and this
nation is, by our Constitution and laws, vested in the government of the United
States." 1 6 8

The discovery of the American continent gave title to the government of the
discoverer as against all other European governments. Designated as the naked fee, 1 6 9
this title was to be consummated by possession and was subject to the Indian title of
occupancy. The discoverer acknowledged the Indians' legal and just claim to retain
possession of the land, the Indians being the original inhabitants of the land. The
discoverer nonetheless asserted the exclusive right to acquire the Indians' land — either by
purchase, "defensive" conquest, or cession — and in so doing, extinguish the Indian title.
Only the discoverer could extinguish Indian title because it alone asserted ultimate
dominion in itself. Thus, while the different nations of Europe respected the rights of the
natives as occupants, they all asserted the ultimate dominion and title to be in themselves.
170

As early as the 19th century, it became accepted doctrine that although fee title to
the lands occupied by the Indians when the colonists arrived became vested in the
sovereign — rst the discovering European nation and later the original 13 States and the
United States — a right of occupancy in the Indian tribes was nevertheless recognized. The
Federal Government continued the policy of respecting the Indian right of occupancy,
sometimes called Indian title, which it accorded the protection of complete ownership. 1 7 1
But this aboriginal Indian interest simply constitutes "permission" from the whites to
occupy the land, and means mere possession not speci cally recognized as ownership by
Congress. 1 7 2 It is clear that this right of occupancy based upon aboriginal possession is
not a property right. 1 7 3 It is vulnerable to a rmative action by the federal government
who, as sovereign, possessed exclusive power to extinguish the right of occupancy at will.
1 7 4 Thus, aboriginal title is not the same as legal title. Aboriginal title rests on actual,
exclusive and continuous use and occupancy for a long time. 1 7 5 It entails that land owned
by Indian title must be used within the tribe, subject to its laws and customs, and cannot
be sold to another sovereign government nor to any citizen. 1 7 6 Such title as Indians have
to possess and occupy land is in the tribe, and not in the individual Indian; the right of
individual Indians to share in the tribal property usually depends upon tribal membership,
the property of the tribe generally being held in communal ownership. 1 7 7
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 As a rule, Indian lands are not included in the term "public lands," which is ordinarily
used to designate such lands as are subject to sale or other disposal under general laws.
1 7 8 Indian land which has been abandoned is deemed to fall into the public domain. 1 7 9 On
the other hand, an Indian reservation is a part of the public domain set apart for the use
and occupation of a tribe of Indians. 1 8 0 Once set apart by proper authority, the reservation
ceases to be public land, and until the Indian title is extinguished, no one but Congress can
initiate any preferential right on, or restrict the nation's power to dispose of, them. 1 8 1
The American judiciary struggled for more than 200 years with the ancestral land
claims of indigenous Americans. 1 8 2 And two things are clear. First, aboriginal title is
recognized. Second, indigenous property systems are also recognized. From a legal point
of view, certain bene ts can be drawn from a comparison of Philippine IPs to native
Americans. 1 8 3 Despite the similarities between native title and aboriginal title, however,
there are at present some misgivings on whether jurisprudence on American Indians may
be cited authoritatively in the Philippines. The U.S. recognizes the possessory rights of the
Indians over their land; title to the land, however, is deemed to have passed to the U.S. as
successor of the discoverer. The aboriginal title of ownership is not speci cally
recognized as ownership by action authorized by Congress. 1 8 4 The protection of
aboriginal title merely guards against encroachment by persons other than the Federal
Government. 1 8 5 Although there are criticisms against the refusal to recognize the native
Americans' ownership of these lands, 1 8 6 the power of the State to extinguish these titles
has remained firmly entrenched. 1 8 7
Under the IPRA, the Philippine State is not barred from asserting sovereignty over
the ancestral domains and ancestral lands. 1 8 8 The IPRA, however, is still in its infancy and
any similarities between its application in the Philippines vis-a-vis American Jurisprudence
on aboriginal title will depend on the peculiar facts of each case.
(c) Why the Cariño doctrine is unique
In the Philippines, the concept of native title rst upheld in Cariño and enshrined in
the IPRA grants ownership, albeit in limited form, of the land to the ICCs/IPs. Native title
presumes that the land is private and was never public. Cariño is the only case that
speci cally and categorically recognizes native title . The long line of cases citing Cariño
did not touch on native title and the private character of ancestral domains and lands.
Cariño was cited by the succeeding cases to support the concept of acquisitive
prescription under the Public Land Act which is a different matter altogether. Under the
Public Land Act, land sought to be registered must be public agricultural land. When the
conditions speci ed in Section 48 [b] of the Public Land Act are complied with, the
possessor of the land is deemed to have acquired, by operation of law, a right to a grant of
the land. 1 8 9 The land ceases to be part of the public domain, 1 9 0 ipso jure, 1 9 1 and is
converted to private property by the mere lapse or completion of the prescribed statutory
period. STHAaD

It was only in the case of Oh Cho v. Director of Lands 1 9 2 that the court declared that
the rule that all lands that were not acquired from the government, either by purchase or
grant, belong to the public domain has an exception. This exception would be any land that
should have been in the possession of an occupant and of his predecessors-in-interest
since time immemorial. It is this kind of possession that would justify the presumption
that the land had never been part of the public domain or that it had been private property
even before the Spanish conquest. 1 9 3 Oh Cho, however, was decided under the provisions
of the Public Land Act and Cariño was cited to support the applicant's claim of acquisitive
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 prescription under the said Act.
All these years, Cariño had been quoted out of context simply to justify long,
continuous, open and adverse possession in the concept of owner of public agricultural
land. It is this long, continuous, open and adverse possession in the concept of owner of
thirty years both for ordinary citizens 1 9 4 and members of the national cultural minorities
1 9 5 that converts the land from public into private and entitles the registrant to a torrens
certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land
is Private.
The private character of ancestral lands and domains as laid down in the IPRA is
further strengthened by the option given to individual ICCs/IPs over their individually-
owned ancestral lands. For purposes of registration under the Public Land Act and the
Land Registration Act, the IPRA expressly converts ancestral land into public agricultural
land which may be disposed of by the State. The necessary implication is that ancestral
land is private. It, however, has to be rst converted to public agricultural land simply for
registration purposes. To wit:
"SECTION 12. Option to Secure Certi cate of Title Under
Commonwealth Act 141, as amended, or the Land Registration Act 496 —
Individual members of cultural communities, with respect to their individually-
owned ancestral lands who, by themselves or through their predecessors-in-
interest, have been in continuous possession and occupation of the same in the
concept of owner since time immemorial or for a period of not less than thirty
(30) years immediately preceding the approval of this Act and uncontested by the
members of the same ICCs/IPs shall have the option to secure title to their
ancestral lands under the provisions of Commonwealth Act 141, as amended, or
the Land Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are
agricultural in character and actually used for agricultural, residential, pasture,
and tree farming purposes, including those with a slope of eighteen percent (18%)
or more, are hereby classified as alienable and disposable agricultural lands.
The option granted under this section shall be exercised within twenty (20)
years from the approval of this Act." 1 9 6

ICCs/IPs are given the option to secure a torrens certi cate of title over their
individually-owned ancestral lands. This option is limited to ancestral lands only, not
domains, and such lands must be individually, not communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs who, by
themselves or through their predecessors-in-interest, have been in continuous possession
and occupation of the same in the concept of owner since time immemorial 1 9 7 or for a
period of not less than 30 years, which claims are uncontested by the members of the
same ICCs/IPs, may be registered under C.A. 141, otherwise known as the Public Land Act,
or Act 496, the Land Registration Act. For purposes of registration, the individually-owned
ancestral lands are classi ed as alienable and disposable agricultural lands of the public
domain, provided, they are agricultural in character and are actually used for agricultural,
residential, pasture and tree farming purposes. These lands shall be classi ed as public
agricultural lands regardless of whether they have a slope of 18% or more.
The classi cation of ancestral land as public agricultural land is in compliance with
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 the requirements of the Public Land Act and the Land Registration Act. C.A. 141, the Public
Land Act, deals speci cally with lands of the public domain. 1 9 8 Its provisions apply to
those lands "declared open to disposition or concession" . . . "which have not been
reserved for public or quasi-public purposes, nor appropriated by the Government, nor in
any manner become private property, nor those on which a private right authorized and
recognized by this Act or any other valid law . . . or which having been reserved or
appropriated, have ceased to be so." 1 9 9 Act 496, the Land Registration Act, allows
registration only of private lands and public agricultural lands. Since ancestral domains
and lands are private, if the ICC/IP wants to avail of the bene ts of C .A. 141 and Act 496,
the IPRA itself converts his ancestral land, regardless of whether the land has a slope of
eighteen per cent (18%) or over, 2 0 0 from private to public agricultural land for proper
disposition. EDCTIa

The option to register land under the Public Land Act and the Land Registration Act
has nonetheless a limited period. This option must be exercised within twenty (20) years
from October 29, 1997, the date of approval of the IPRA.
Thus, ancestral lands and ancestral domains are not part of the lands of the public
domain. They are private and belong to the ICCs/IPs. Section 3 of Article XII on National
Economy and Patrimony of the 1987 Constitution classi es lands of the public domain
into four categories: (a) agricultural, (b) forest or timber, (c) mineral lands, and (d) national
parks. Section 5 of the same Article XII mentions ancestral lands and ancestral domains
but it does not classify them under any of the said four categories. To classify them as
public lands under any one of the four classes will render the entire IPRA law a nullity. The
spirit of the IPRA lies in the distinct concept of ancestral domains and ancestral lands. The
IPRA addresses the major problem of the ICCs/IPs which is loss of land. Land and space
are of vital concern in terms of sheer survival of the ICCs/IPs. 2 0 1
The 1987 Constitution mandates the State to "protect the rights of indigenous
cultural communities to their ancestral lands" and that "Congress provide for the
applicability of customary laws . . . in determining the ownership and extent of ancestral
domain." 2 0 2 It is the recognition of the ICCs/IPs distinct rights of ownership over their
ancestral domains and lands that breathes life into this constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is
a limited form of ownership and does not include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act recognizes the
concept of ownership under the civil law. This ownership is based on adverse possession
for a speci ed period, and harkens to Section 44 of the Public Land Act on administrative
legalization (free patent) of imperfect or incomplete titles and Section 48 (b) and (c) of the
same Act on the judicial confirmation of imperfect or incomplete titles. Thus:
"SECTION 44. Any natural-born citizen of the Philippines who is not the
owner of more than twenty-four hectares and who since July fourth, 1926 or prior
thereto, has continuously occupied and cultivated, either by himself or through his
predecessors-in-interest, a tract or tracts of agricultural public lands subject to
disposition, or who shall have paid the real estate tax thereon while the same has
not been occupied by any person shall be entitled, under the provisions of this
chapter, to have a free patent issued to him for such tract or tracts of such land
not to exceed twenty-four hectares.
A member of the national cultural minorities who has continuously
occupied and cultivated, either by himself or through his predecessors-in-interest,
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 a tract or tracts of land, whether disposable or not since July 4, 1955, shall be
entitled to the right granted in the preceding paragraph of this section: Provided,
That at the time he les his free patent application he is not the owner of any real
property secured or disposable under the provision of the Public Land Law. 2 0 3
xxx xxx xxx.
"SECTION 48. The following described citizens of the Philippines,
occupying lands of the public domain or claiming to own any such lands or an
interest therein, but whose titles have not been perfected or completed, may apply
to the Court of First Instance of the province where the land is located for
con rmation of their claims and the issuance of a certi cate of title therefor,
under the Land Registration Act, to wit:
(a) [perfection of Spanish titles] . . . .
(b) Those who by themselves or through their predecessors-in-
interest have been in open, continuous, exclusive, and notorious
possession and occupation of agricultural lands of the public domain,
under a bona fide claim of acquisition or ownership, for at least thirty years
immediately preceding the ling of the application for con rmation of title
except when prevented by war or force majeure. These shall be
conclusively presumed to have performed all the conditions essential to a
Government grant and shall be entitled to a certi cate of title under the
provisions of this Chapter.
(c) Members of the national cultural minorities who by
themselves or through their predecessors-in-interest have been in open,
continuous, exclusive and notorious possession and occupation of lands
of the public domain suitable to agriculture, whether disposable or not,
under a bona de claim of ownership for at least 30 years shall be entitled
to the rights granted in sub-section (b) hereof ." 2 0 4
Registration under the foregoing provisions presumes that the land was originally
public agricultural land but because of adverse possession since July 4, 1955 (free patent)
or at least thirty years (judicial con rmation), the land has become private. Open, adverse,
public and continuous possession is su cient, provided, the possessor makes proper
application therefor. The possession has to be con rmed judicially or administratively
after which a torrens title is issued. DTIaCS

A torrens title recognizes the owner whose name appears in the certi cate as
entitled to all the rights of ownership under the civil law. The Civil Code of the Philippines
de nes ownership in Articles 427, 428 and 429. This concept is based on Roman Law
which the Spaniards introduced to the Philippines through the Civil Code of 1889.
Ownership, under Roman Law, may be exercised over things or rights. It primarily includes
the right of the owner to enjoy and dispose of the thing owned. And the right to enjoy and
dispose of the thing includes the right to receive from the thing what it produces, 2 0 5 the
right to consume the thing by its use, 2 0 6 the right to alienate, encumber, transform or even
destroy the thing owned, 2 0 7 and the right to exclude from the possession of the thing
owned by any other person to whom the owner has not transmitted such thing. 2 0 8
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a
torrens title but to a Certi cate of Ancestral Domain Title (CADT). The CADT formally
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 recognizes the indigenous concept of ownership of the ICCs/IPs over their ancestral
domain. Thus:
"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."

The right of ownership and possession of the ICCs/IPs to their ancestral domains is
held under the indigenous concept of ownership. This concept maintains the view that
ancestral domains are the ICCs/IPs private but community property. It is private simply
because it is not part of the public domain. But its private character ends there. The
ancestral domain is owned in common by the ICCs/IPs and not by one particular person.
The IPRA itself provides that areas within the ancestral domains, whether delineated or
not, are presumed to be communally held. 2 0 9 These communal rights, however, are not
exactly the same as co-ownership rights under the Civil Code. 2 1 0 Co-ownership gives any
co-owner the right to demand partition of the property held in common. The Civil Code
expressly provides that "[n]o co-owner shall be obliged to remain in the co-ownership."
Each co-owner may demand at any time the partition of the thing in common, insofar as his
share is concerned. 2 1 1 To allow such a right over ancestral domains may be destructive
not only of customary law of the community but of the very community itself. 2 1 2
Communal rights over land are not the same as corporate rights over real property,
much less corporate condominium rights. A corporation can exist only for a maximum of
fty (50) years subject to an extension of another fty years in any single instance. 2 1 3
Every stockholder has the right to disassociate himself from the corporation. 2 1 4
Moreover, the corporation itself may be dissolved voluntarily or involuntarily. 2 1 5
Communal rights to the land are held not only by the present possessors of the land
but extends to all generations of the ICCs/IPs, past, present and future, to the domain. This
is the reason why the ancestral domain must be kept within the ICCs/IPs themselves. The
domain cannot be transferred, sold or conveyed to other persons. It belongs to the
ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of ownership. The lands
are communal. These lands, however, may be transferred subject to the following
limitations: (a) only to the members of the same ICCs/IPs; (b) in accord with customary
laws and traditions; and (c) subject to the right of redemption of the ICCs/IPs for a period
of 15 years if the land was transferred to a non-member of the ICCs/IPs.
Following the constitutional mandate that "customary law govern property rights or
relations in determining the ownership and extent of ancestral domains," 2 1 6 the IPRA, by
legislative at, introduces a new concept of ownership . This is a concept that has long
existed under customary law. 2 1 7
Custom, from which customary law is derived, is also recognized under the Civil
Code as a source of law. 2 1 8 Some articles of the Civil Code expressly provide that custom
should be applied in cases where no codal provision is applicable. 2 1 9 In other words, in the
absence of any applicable provision in the Civil Code, custom, when duly proven, can de ne
rights and liabilities. 2 2 0
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 Customary law is a primary, not secondary, source of rights under the IPRA and
uniquely applies to ICCs/IPs. Its recognition does not depend on the absence of a speci c
provision in the civil law. The indigenous concept of ownership under customary law is
speci cally acknowledged and recognized, and coexists with the civil law concept and the
laws on land titling and land registration. 2 2 1
To be sure, the indigenous concept of ownership exists even without a paper title.
The CADT is merely a "formal recognition" of native title. This is clear from Section 11 of
the IPRA, to wit:
"SECTION 11. Recognition of Ancestral Domain Rights. — The rights of
ICCs/IPs to their ancestral domains by virtue of Native Title shall be recognized
and respected. Formal recognition, when solicited by ICCs/IPs concerned shall be
embodied in a Certi cate of Ancestral Domain Title, which shall recognize the title
of the concerned ICCs/IPs over the territories identified and delineated."

The moral import of ancestral domain, native land or being native is "belongingness"
to the land, being people of the land — by sheer force of having sprung from the land since
time beyond recall, and the faithful nurture of the land by the sweat of one's brow. This is
delity of usufructuary relation to the land — the possession of stewardship through
perduring, intimate tillage, and the mutuality of blessings between man and land; from
man, care for land; from the land, sustenance for man. 2 2 2
C. Sections 7(a), 7(b), and 57 of the IPRA Do Not Violate the Regalian Doctrine
Enshrined in Section 2, Article XII of the 1987 Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands
The IPRA grants the ICCs/IPs several rights over their ancestral domains and
ancestral lands. Section 7 provides for the rights over ancestral domains:
"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 include: aSTAcH

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 shing grounds, and all
improvements made by them at any time within the domains;
b) Right to Develop Lands and Natural Resources. — Subject to
Section 56 hereof, the right to develop, control and use lands and territories
traditionally occupied, owned, or used; to manage and conserve natural
resources within the territories and uphold the responsibilities for future
generations; to bene t and share the pro ts 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;"
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 c) Right to Stay in the Territories . — The right to stay in the
territory and not to be removed therefrom. No ICCs/IPs will be relocated
without their free and prior informed consent, nor through any means other
than eminent domain. . . .;
d) Right in Case of Displacement. — In case displacement
occurs as a result of natural catastrophes, the State shall endeavor to
resettle the displaced ICCs/IPs in suitable areas where they can have
temporary life support systems: . . .;
e) Right to Regulate the Entry of Migrants. — Right to regulate
the entry of migrant settlers and organizations into their domains;
f) Right to Safe and Clean Air and Water. — For this purpose, the
ICCs/IPs shall have access to integrated systems for the management of
their inland waters and air space;
g) Right to Claim Parts of Reservations. — The right to claim
parts of the ancestral domains which have been reserved for various
purposes, except those reserved and intended for common and public
welfare and service;
h) Right to Resolve Con ict . — Right to resolve land con icts in
accordance with customary laws of the area where the land is located, and
only in default thereof shall the complaints be submitted to amicable
settlement and to the Courts of Justice whenever necessary."

Section 8 provides for the rights over ancestral lands:

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

a) Right to transfer land/property. — Such right shall include the

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

Section 7 (a) de nes the ICCs/IPs the right of ownership over their ancestral
domains which covers (a) lands, (b) bodies of water traditionally and actually occupied by
the ICCs/IPs, (c) sacred places, (d) traditional hunting and shing grounds, and (e) all
improvements made by them at any time within the domains. The right of ownership
includes the following rights: (1) the right to develop lands and natural resources; (b) the
right to stay in the territories; (c) the right to resettlement in case of displacement, (d) the
right to regulate the entry of migrants; (e) the right to safe and clean air and water; (f) the
right to claim parts of the ancestral domains as reservations; and (g) the right to resolve
conflict in accordance with customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership over the
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 ancestral domains, Section 8 gives the ICCs/IPs also the right to transfer the land or
property rights to members of the same ICCs/IPs or non-members thereof. This is in
keeping with the option given to ICCs/IPs to secure a torrens title over the ancestral lands,
but not to domains. TECcHA

2 . The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral
Domains Does Not Deprive the State of Ownership Over the Natural Resources and
Control and Supervision in their Development and Exploitation.
The Regalian doctrine on the ownership, management and utilization of natural
resources is declared in Section 2, Article XII of the 1987 Constitution, viz:
"SECTION 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, sheries, forests
or timber, wildlife, ora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly
undertake such activities, or, it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens.
Such agreements may be for a period not exceeding twenty- ve years, renewable
for not more than twenty- ve years, and under such terms and conditions as may
be provided by law. In cases of water rights for irrigation, water supply, sheries,
water supply, sheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural

resources by Filipino citizens, as well as cooperative sh farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations
involving either technical or nancial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such
agreements, the state shall promote the development and use of local scienti c
and technical resources.
The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution." 2 2 3

All lands of the public domain and all natural resources — waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, sheries, forests or timber,
wildlife, ora and fauna, and other natural resources — are owned by the State. The
Constitution provides that in the exploration, development and utilization of these natural
resources, the State exercises full control and supervision, and may undertake the same in
four (4) modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production. joint venture or production-
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 sharing agreements with Filipino citizens or qualified corporations;
3. Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens;
4. For the large-scale exploration, development and utilization of
minerals, petroleum and other mineral oils, the President may enter
into agreements with foreign-owned corporations involving technical
or financial assistance.
As owner of the natural resources, the State is accorded primary power and
responsibility in the exploration, development and utilization of these natural resources.
The State may directly undertake the exploitation and development by itself, or, it may
allow participation by the private sector through co-production, 2 2 4 joint venture, 2 2 5 or
production-sharing agreements. 2 2 6 These agreements may be for a period of 25 years,
renewable for another 25 years. The State, through Congress, may allow the small-scale
utilization of natural resources by Filipino citizens. For the large-scale exploration of these
resources, speci cally minerals, petroleum and other mineral oils, the State, through the
President, may enter into technical and nancial assistance agreements with foreign-
owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale
Mining Act of 1991 (R.A. 7076) the three types of agreements, i.e., co-production, joint
venture or production-sharing, may apply to both large-scale 2 2 7 and small-scale mining.
2 2 8 "Small-scale mining" refers to "mining activities which rely heavily on manual labor
using simple implements and methods and do not use explosives or heavy mining
equipment." 2 2 9
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership
over the natural resources within their ancestral domains. The right of ICCs/IPs in their
ancestral domains includes ownership, but this "ownership" is expressly de ned and
limited in Section 7 (a) as:
"SECTION 7.a) Right of ownership. — The right to claim ownership over
lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred
places, traditional hunting and shing grounds, and all improvements made by
them at any time within the domains;"

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

The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section
7(a) complies with the Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of
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 Sec. 7 (a) of the IPRA And is Unconstitutional.
The Rules Implementing the IPRA 2 3 0 in Section 1, Part II, Rule III reads:
"SECTION 1. Rights of Ownership. — ICCs/IPs have rights of ownership
over lands, waters, and natural resources and all improvements made by them at
any time within the ancestral domains/lands. These rights shall include, but not
limited to, the right over the fruits, the right to possess, the right to use, right to
consume, right to exclude and right to recover ownership, and the rights or
interests over land and natural resources. The right to recover shall be particularly
applied to lands lost through fraud or any form or vitiated consent or transferred
for an unconscionable price."

Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands,
waters and natural resources." The term "natural resources" is not one of those
expressly mentioned in Section 7 (a) of the law. Our Constitution and jurisprudence
clearly declare that the right to claim ownership over land does not necessarily include
the right to claim ownership over the natural resources found on or under the land. 2 3 1
The IPRA itself makes a distinction between land and natural resources. Section 7 (a)
speaks of the right of ownership only over the land within the ancestral domain. It is
Sections 7 (b) and 57 of the law that speak of natural resources, and these provisions,
as shall be discussed later, do not give the ICCs/IPs the right of ownership over these
resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not
speci cally and categorically challenged by petitioners. Petitioners actually assail the
constitutionality of the Implementing Rules in general. 2 3 2 Nevertheless, to avoid any
confusion in the implementation of the law, it is necessary to declare that the inclusion of
"natural resources" in Section 1, Part II, Rule III of the Implementing Rules goes beyond the
parameters of Section 7 (b) of the law and is contrary to Section 2, Article XII of the 1987
Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed
Under Paragraph 3, Section 2 of Article XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA in Section 7
(b) merely grants the ICCs/IPs the right to manage them, viz:
"SECTION 7 (b) Right to Develop Lands and Natural Resources. —
Subject to Section 56 hereof, right to develop, control and use lands and territories
traditionally occupied, owned, or used; to manage and conserve natural resources
within the territories and uphold the responsibilities for future generations; to
bene t and share the pro ts 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;"

T h e right to develop lands and natural resources under Section 7 (b) of the IPRA
enumerates the following rights:
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 a) the right to develop, control and use lands and territories traditionally
occupied;
b) the right to manage and conserve natural resources within the
territories and uphold the responsibilities for future generations;
c) the right to bene t and share the pro ts from the allocation and
utilization of the natural resources found therein;
d) the right to negotiate the terms and conditions for the exploration of
natural resources for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant to
national and customary laws; DTEScI

e) the right to an informed and intelligent participation in the formulation

and implementation of any project, government or private, that will
affect or impact upon the ancestral domains and to receive just and
fair compensation for any damages which they may sustain as a
result of the project;
f) the right to effective measures by the government to prevent any
interference with, alienation and encroachment upon these rights." 2 3 3
Ownership over the natural resources in the ancestral domains remains with the State
and the ICCs/IPs are merely granted the right to "manage and conserve" them for future
generations, "bene t and share" the pro ts from their allocation and utilization, and
"negotiate the terms and conditions for their exploration" for the purpose of "ensuring
ecological and environmental protection and conservation measures." It must be noted
that the right to negotiate the terms and conditions over the natural resources covers
only their exploration which must be for the purpose of ensuring ecological and
environmental protection of, and conservation measures in the ancestral domain. It
does not extend to the exploitation and development of natural resources.
Simply stated, the ICCs/IPs' rights over the natural resources take the form of
management or stewardship. For the ICCs/IPs may use these resources and share in the
pro ts of their utilization or negotiate the terms for their exploration. At the same time,
however, the ICCs/IPs must ensure that the natural resources within their ancestral
domains are conserved for future generations and that the "utilization" of these resources
must not harm the ecology and environment pursuant to national and customary laws. 2 3 4
The limited rights of "management and use" in Section 7 (b) must be taken to
contemplate small-scale utilization of natural resources as distinguished from large-scale.
Small-scale utilization of natural resources is expressly allowed in the third paragraph of
Section 2, Article XII of the Constitution "in recognition of the plight of forest dwellers, gold
panners, marginal shermen and others similarly situated who exploit our natural
resources for their daily sustenance and survival. " 2 3 5 Section 7 (b) also expressly
mandates the ICCs/IPs to manage and conserve these resources and ensure
environmental and ecological protection within the domains, which duties, by their very
nature, necessarily reject utilization in a large-scale.
(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is
Allowed Under Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
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 "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- ve (25) years renewable for not more than twenty- ve (25) years:
Provided, That a formal and written agreement is entered into with the ICCs/IPs
concerned or that the community, pursuant to its own decision-making process,
has agreed to allow such operation: Provided finally , That the NCIP may exercise
visitorial powers and take appropriate action to safeguard the rights of the
ICCs/IPs under the same contract."

Section 57 speaks of the "harvesting, extraction, development or exploitation of

natural resources within ancestral domains" and "gives the ICCs/IPs 'priority rights'
therein." The terms " harvesting, extraction, development or exploitation" of any natural
resources within the ancestral domains obviously refer to large-scale utilization. It is
utilization not merely for subsistence but for commercial or other extensive use that
require technology other than manual labor. 2 3 6 The law recognizes the probability of
requiring a non-member of the ICCs/IPs to participate in the development and utilization of
the natural resources and thereby allows such participation for a period of not more than
25 years, renewable for another 25 years. This may be done on condition that a formal
written agreement be entered into by the non-member and members of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and
conserve" the natural resources. Instead, the law only grants the ICCs/IPs "priority rights"
in the development or exploitation thereof. Priority means giving preference. Having
priority rights over the natural resources does not necessarily mean ownership rights. The
grant of priority rights implies that there is a superior entity that owns these resources and
this entity has the power to grant preferential rights over the resources to whosoever itself
chooses. TaDAHE

Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an a rmation of

the said doctrine that all natural resources found within the ancestral domains belong to
the State. It incorporates by implication the Regalian doctrine, hence, requires that the
provision be read in the light of Section 2, Article XII of the 1987 Constitution. Interpreting
Section 2, Article XII of the 1987 Constitution 2 3 7 in relation to Section 57 of IPRA, the
State, as owner of these natural resources, may directly undertake the development and
exploitation of the natural resources by itself, or in the alternative, it may recognize the
priority rights of the ICCs/IPs as owners of the land on which the natural resources are
found by entering into a co-production, joint venture, or production-sharing agreement with
them. The State may likewise enter into any of said agreements with a non-member of the
ICCs/IPs, whether natural or juridical, or enter into agreements with foreign-owned
corporations involving either technical or nancial assistance for the large-scale
exploration, development and utilization of minerals, petroleum, and other mineral oils, or
allow such non-member to participate in its agreement with the ICCs/IPs. If the State
decides to enter into an agreement with a non-ICC/IP member, the National Commission
on Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the
agreement shall be protected. The agreement shall be for a period of 25 years, renewable
for another 25 years.
To reiterate, in the large-scale utilization of natural resources within the ancestral
domains, the State, as owner of these resources, has four (4) options: (1) it may, of and by
itself, directly undertake the development and exploitation of the natural resources; or (2)
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 it may recognize the priority rights of the ICCs/IPs by entering into an agreement with
them for such development and exploitation; or (3) it may enter into an agreement with a
non-member of the ICCs/IPs, whether natural or juridical, local or foreign; or (4) it may
allow such non-member to participate in the agreement with the ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural resources in their
ancestral domains merely gives the ICCs/IPs, as owners and occupants of the land on
which the resources are found, the right to the small-scale utilization of these resources,
and at the same time, a priority in their large-scale development and exploitation. Section
57 does not mandate the State to automatically give priority to the ICCs/IPs. The State has
several options and it is within its discretion to choose which option to pursue. Moreover,
there is nothing in the law that gives the ICCs/IPs the right to solely undertake the large-
scale development of the natural resources within their domains. The ICCs/IPs must
undertake such endeavour always under State supervision or control. This indicates that
the State does not lose control and ownership over the resources even in their exploitation.
Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs who, as actual
occupants of the land where the natural resources lie, have traditionally utilized these
resources for their subsistence and survival.
Neither is the State stripped of ownership and control of the natural resources by
the following provision:
"SECTION 59. Certi cation 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 certi cation from the NCIP that the
area affected does not overlap with any ancestral domain. Such certification shall
only be issued after a eld-based investigation is conducted by the Ancestral
Domains O ce of the area concerned: Provided, That no certi cation shall be
issued by the NCIP without the free and prior informed and written consent of the
ICCs/IPs concerned: Provided, further, That no department, government agency or
government-owned or -controlled corporation may issue new concession, license,
lease, or production sharing agreement while there is a pending application for a
CADT: Provided, finally , That the ICCs/IPs shall have the right to stop or suspend,
in accordance with this Act, any project that has not satis ed the requirement of
this consultation process."

Concessions, licenses, lease or production-sharing agreements for the exploitation of

natural resources shall not be issued, renewed or granted by all departments and
government agencies without prior certi cation from the NCIP that the area subject of
the agreement does not overlap with any ancestral domain. The NCIP certi cation shall
be issued only after a eld-based investigation shall have been conducted and the free
and prior informed written consent of the ICCs/IPs obtained. Non-compliance with the
consultation requirement gives the ICCs/IPs the right to stop or suspend any project
granted by any department or government agency.
As its subtitle suggests, this provision requires as a precondition for the issuance of
any concession, license or agreement over natural resources, that a certi cation be issued
by the NCIP that the area subject of the agreement does not lie within any ancestral
domain. The provision does not vest the NCIP with power over the other agencies of the
State as to determine whether to grant or deny any concession or license or agreement. It
merely gives the NCIP the authority to ensure that the ICCs/IPs have been informed of the
agreement and that their consent thereto has been obtained. Note that the certi cation
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 applies to agreements over natural resources that do not necessarily lie within the
ancestral domains. For those that are found within the said domains, Sections 7(b) and 57
of the IPRA apply. SHTEaA

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

INTERNATIONAL MOVEMENT.
The indigenous movement can be seen as the heir to a history of anti-imperialism
stretching back to prehistoric times. The movement received a massive impetus during
the 1960's from two sources. First, the decolonization of Asia and Africa brought into the
limelight the possibility of peoples controlling their own destinies. Second, the right of self-
determination was enshrined in the UN Declaration on Human Rights. 2 3 8 The rise of the
civil rights movement and anti-racism brought to the attention of North American Indians,
Aborigines in Australia, and Maori in New Zealand the possibility of ghting for
fundamental rights and freedoms.
In 1974 and 1975, international indigenous organizations were founded, 2 3 9 and
during the 1980's, indigenous affairs were on the international agenda. The people of the
Philippine Cordillera were the rst Asians to take part in the international indigenous
movement. It was the Cordillera People's Alliance that carried out successful campaigns
against the building of the Chico River Dam in 1981-82 and they have since become one of
the best-organized indigenous bodies in the world. 2 4 0
Presently, there is a growing concern for indigenous rights in the international scene.
This came as a result of the increased publicity focused on the continuing disrespect for
indigenous human rights and the destruction of the indigenous peoples' environment,
together with the national governments' inability to deal with the situation. 2 4 1 Indigenous
rights came as a result of both human rights and environmental protection, and have
become a part of today's priorities for the international agenda. 2 4 2
International institutions and bodies have realized the necessity of applying policies,
programs and speci c rules concerning IPs in some nations. The World Bank, for example,
rst adopted a policy on IPs as a result of the dismal experience of projects in Latin
America. 2 4 3 The World Bank now seeks to apply its current policy on IPs to some of its
projects in Asia. This policy has provided an in uential model for the projects of the Asian
Development Bank. 2 4 4
The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and
declares as a State policy the promotion of their rights within the framework of national
unity and development. 2 4 5 The IPRA amalgamates the Philippine category of ICCs with the
international category of IPs, 2 4 6 and is heavily in uenced by both the International Labor
Organization (ILO) Convention 169 and the United Nations (UN) Draft Declaration on the
Rights of Indigenous Peoples. 2 4 7
ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal
Peoples in Independent Countries" 2 4 8 and was adopted on June 27, 1989. It is based on
the Universal Declaration of Human Rights, the International Covenant on Economic, Social
and Cultural Rights, the International Covenant on Civil and Political Rights, and many other
international instruments on the prevention of discrimination. 2 4 9 ILO Convention No. 169
revised the "Convention Concerning the Protection and Integration of Indigenous and Other
Tribal and Semi-Tribal Populations in Independent Countries" (ILO No. 107) passed on
June 26, 1957. Developments in international law made it appropriate to adopt new
international standards on indigenous peoples "with a view to removing the assimilationist
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 orientation of the earlier standards," and recognizing the aspirations of these peoples to
exercise control over their own institutions, ways of life and economic development. 2 5 0
CONCLUSION
The struggle of the Filipinos throughout colonial history had been plagued by ethnic
and religious differences. These differences were carried over and magni ed by the
Philippine government through the imposition of a national legal order that is mostly
foreign in origin or derivation. 2 5 1 Largely unpopulist, the present legal system has resulted
in the alienation of a large sector of society, speci cally, the indigenous peoples. The
histories and cultures of the indigenes are relevant to the evolution of Philippine culture
and are vital to the understanding of contemporary problems. 2 5 2 It is through the IPRA
that an attempt was made by our legislators to understand Filipino society not in terms of
myths and biases but through common experiences in the course of history. The
Philippines became a democracy a centennial ago and the decolonization process still
continues. If the evolution of the Filipino people into a democratic society is to truly
proceed democratically, i.e., if the Filipinos as a whole are to participate fully in the task of
continuing democratization, 2 5 3 it is this Court's duty to acknowledge the presence of
indigenous and customary laws in the country and a rm their co-existence with the land
laws in our national legal system. EHSTcC

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

Indigenous Peoples Rights Act of 1997.

VITUG, J.:

An issue of grave national interest indeed deserves a proper place in any forum and,
when it shows itself in a given judicial controversy, the rules of procedure, like locus standi,
the propriety of the speci c remedy invoked, or the principle of hierarchy of courts, that
may ordinarily be raised by party-litigants, should not be so perceived as good and
inevitable justifications for advocating timidity, let alone isolationism, by the Court.
A cardinal requirement, to which I agree, is that one who invokes the Court's
adjudication must have a personal and substantial interest in the dispute; 1 indeed, the
developing trend would require a logical nexus between the status asserted and the claim
sought to be adjudicated in order to ensure that one is the proper and appropriate party to
invoke judicial power. 2 The rule requires a party to aptly show a personal stake in the
outcome of the case or an injury to himself that can be redressed by a favorable decision
so as to warrant his invocation of the Court's jurisdiction and to render legally feasible the
exercise of the Court's remedial powers in his behalf. If it were otherwise, the exercise of
that power can easily become too unwieldy by its sheer magnitude and scope to a point
that may, in no small measure, adversely affect its intended essentiality, stability and
consequentiality.
Nevertheless, where a most compelling reason exists, such as when the matter is of
transcendental importance and paramount interest to the nation, 3 the Court must take the
liberal approach that recognizes the legal standing of nontraditional plaintiffs, such as
citizens and taxpayers, to raise constitutional issues that affect them. 4 This Court thus did
so in a case 5 that involves the conservation of our forests for ecological needs. Until an
exact balance is struck, the Court must accept an eclectic notion that can free itself from
the bondage of legal nicety and hold trenchant technicalities subordinate to what may be
considered to be of overriding concern.

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 The petition seeks a declaration by the Court of unconstitutionality of certain
provisions of Republic Act No. 8371, a law that obviously is yet incapable of exact equation
in its signi cance to the nation and its people now and in the generations yet to come.
Republic Act No. 8371, otherwise also known as the Indigenous Peoples Rights Act of
1997 ("IPRA"), enacted into law in 1997 and made effective on 22 November 1997, is
apparently intended to be a legislative response to the 1987 Constitution which
recognizes the rights of indigenous cultural communities "within the framework of national
unity and development" 6 and commands the State, "subject to the provisions of this
Constitution and national development policies and programs," to protect the rights of
indigenous cultural communities to their ancestral lands in order to ensure their economic,
social, and cultural well-being. 7
Among the assailed provisions in IPRA is its Section 3(a) which de nes "ancestral
domains" to embrace "all areas generally belonging to ICCs/IPs comprising lands, inland
waters, coastal areas, and natural resources" including "ancestral lands, forests, pasture,
residential, agricultural, and other lands individually owned whether alienable and
disposable or otherwise," over which indigenous cultural communities/indigenous peoples
("ICCs/IPs") could exercise virtual ownership and control.
IPRA effectively withdraws from the public domain the so-called ancestral domains
covering literally millions of hectares. The notion of community property would
comprehend not only matters of proprietary interest but also some forms of self-
governance over the curved-out territory. This concept is elaborated in Section 7 of the law
which states that the "rights of ownership and possession of ICCs/IPs to their ancestral
domains shall be recognized and protected," subsumed under which would encompass
t he right of ownership (paragraph a); the right to develop, control and use lands and
natural resources, including "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;"(par. b); the right to stay in the territories (par. c); the right to return to
their abandoned lands in case of displacement (par. d); the right to regulate entry of
migrants (par. e); the right to claim parts of ancestral domains previously reserved (par. g);
and the right to resolve land con icts in accordance primarily with customary law (par. h) .
Concurrently, Section 57 states that ICCs/IPs shall be given "priority rights in the
harvesting, extraction, development or exploitation of any natural resources within the
ancestral domains." These provisions of IPRA, in their totality, are, in my view, beyond the
context of the fundamental law and virtually amount to an undue delegation, if not an
unacceptable abdication, of State authority over a signi cant area of the country and its
patrimony.
Article XII of the 1987 Constitution expresses that all "lands of the public domain,
waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
sheries, forests or timber, wildlife, ora and fauna, and other natural resources are owned
by the State," and, with the exception of agricultural lands, shall not be alienated." It ordains
that the "exploration, development, and utilization of natural resources shall be under the
full control and supervision of the State." 8
These provisions had roots in the 1935 Constitution which, along with some other
speci c mandates in the 1935 Constitution, forming Article XII under the title
"Conservation and Utilization of Natural Resources," were derived largely from the report of
the Committee on Nationalization and Preservation of Lands and other Natural Resources.
9 According to the Committee report, among the principles upon which these provisions
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 were based, was "that the land, minerals, forests and other natural resources constitute the
exclusive heritage of the Filipino Nation," and should thereby "be presented for those under
the sovereign authority of the Nation and for their posterity." 1 0 The delegates to the 1934
Constitutional Convention were of the unanimous view that the "policy on natural
resources, being fundamental to the nation's survival should not be left to the changing
mood of the lawmaking body." 1 1
The 1987 Constitution, like the precursor provisions in the 1935 and 1973
Constitutions, thus expresses this regalian doctrine of the old, and the domainial doctrine
of the new, that all lands and natural resources belong to the state other than those which
it recognizes to be of private ownership. Except for agricultural lands of the public domain
which alone may be alienated, forest or timber, and mineral lands, as well as all other
natural resources, of the country must remain with the state, the exploration, development
and utilization of which shall be subject to its full control and supervision albeit allowing it
to enter into co-production, joint venture or production-sharing agreements, or into
agreements with foreign-owned corporations involving technical or financial assistance for
large-scale exploration, development and utilization. 1 2
The decision of the United States Supreme Court in Cariño vs. Insular Government,
1 3 holding that a parcel of land held since time immemorial by individuals under a claim of
private ownership is presumed never to have been public land and cited to downgrade the
application of the regalian doctrine, cannot override the collective will of the people
expressed in the Constitution. It is in them that sovereignty resides and from them that all
government authority emanates. 1 4 It is not then for a court ruling or any piece of
legislation to be conformed to by the fundamental law, but it is for the former to adapt to
the latter, and it is the sovereign act that must, between them, stand inviolate.
The second paragraph of Section 5 of Article XII of the Constitution allows
Congress to provide "for the applicability of customary laws governing property rights or
relations in determining the ownership and extent of ancestral domains." I do not see this
statement as saying that Congress may enact a law that would simply express that
"customary laws shall govern" and end it there. Had it been so, the Constitution could have
itself easily provided without having to still commission Congress to do it. Mr. Chief
Justice Davide Jr. , has explained this authority of Congress, during the deliberations of the
1986 Constitutional Convention, thus:
"Mr. Davide. . . . Insofar as the application of the customary laws governing
property rights or relations in determining the ownership and extent of the
ancestral domain is concerned, it is respectfully submitted that the particular
matter must be submitted to Congress. I understand that the idea of Comm.
Bennagen is for the possibility of the codi cation of these customary laws. So
before these are codi ed, we cannot now mandate that the same must
immediately be applicable. We leave it to Congress to determine the extent of the
ancestral domain and the ownership thereof in relation to whatever may have
been codified earlier. So, in short, let us not put the cart ahead of the horse." 1 5

The constitutional aim, it seems to me, is to get Congress to look closely into the
customary laws and, with speci city and by proper recitals, to hew them to, and make
them part of, the stream of laws. The "due process clause," as I so understand it in Tañada
vs. Tuvera 1 6 would require an apt publication of a legislative enactment before it is
permitted to take force and effect. So, also, customary laws, when speci cally enacted to
become part of statutory law, must rst undergo that publication to render them
correspondingly binding and effective as such.
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 Undoubtedly, IPRA has several good points, and I would respectfully urge Congress
to re-examine the law. Indeed, the State is exhorted to protect the rights of Indigenous
cultural communities to their ancestral lands, a task that would entail a balancing of
interest between their specific needs and the imperatives of national interest.
WHEREFORE, I vote to grant the petition.

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 a piece of land is a
birthright of every man. The lowly animals claim their place; how much more man? Man is
born to live. Apu Kabunian, lord of us all, gave us life and placed us in the world to live
human lives. And where shall we obtain life? From the land. To work (the land) is an
obligation, not merely a right. In tilling the land, you possess it. And so land is a grace that
must be nurtured. To enrich it and make it fructify is the eternal exhortation of Apu
Kabunian to all his children. Land is sacred. Land is beloved. From its womb springs . . . life.
— Macli-ing Dulag, Chieftain of the Kalinga Tribe (quoted in Ponciano L. Bennagen, "Tribal
Filipinos" in Indigenous View of Land and the Environment, ed. Shelton H. Davis, the World Bank
Discussion Papers, No. 188, pp. 71-72.)

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

harmony with, rather than in violation of, the Constitution. 1 The presumption is that the
legislature intended to enact a valid, sensible and just law and one which operates no
further than may be necessary to effectuate the specific purpose of the law. 2
The challenged provisions of the Indigenous Peoples Rights Act (IPRA) must be
construed in view of such presumption of constitutionality. Further, the interpretation of
these provisions should take into account the purpose of the law, which is to give life to
the constitutional mandate that the rights of the indigenous peoples be recognized and
protected.
The struggle of our indigenous peoples to reclaim their ancestral lands and domains
and therefore, their heritage, is not unique. It is one that they share with the red-skinned
"Indians" of the United States, with the aborigines of Australia, the Maori of New Zealand
and the Sazmi of Sweden, to name a few. Happily, the nations in which these indigenous
peoples live all have enacted measures in an attempt to heal an oppressive past by the
promise of a progressive future. Thus has the international community realized the
injustices that have been perpetrated upon the indigenous peoples. This sentiment among
the family of nations is expressed in a number of documents, the most recent and most
comprehensive of which is the Draft United Nations Declaration on the Rights of
Indigenous Peoples which was adopted by the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities by its resolution on August 26, 1994. Among
the rights recognized by the UN Draft is the restitution of lands, territories and even the
resources which the indigenous peoples have traditionally owned or otherwise occupied or
used, and which have been con scated, occupied, used or damaged without the free and
informed consent of the indigenous peoples. TaDSHC

A Historical Backdrop on the Indigenous Peoples

The term "indigenous" traces its origin to the Old Latin word indu, meaning "within."
In the sense the term has come to be used, it is nearer in meaning to the Latin word
indigenus, which means "native." 3 "Indigenous" refers to that which originated or has been
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 produced naturally in a particular land, and has not been introduced from the outside. 4 In
international law, the de nition of what constitutes "indigenous peoples" attains some
degree of controversy. No definition of the term "indigenous peoples" has been adopted by
the United Nations (UN), although UN practice has been guided by a working de nition in
the 1986 Report of UN Special Rapporteur Martinez Cobo: 5
Indigenous communities, peoples and nations are those which, having a
historical continuity with pre-invasion and pre-colonial societies that developed on
their territories, consider themselves distinct from other sections of the societies
now prevailing in those territories, or parts of them. They form at present non-
dominant sections of society and are determined to preserve, develop and
transmit to future generations their ancestral territories, and their ethnic identity,
as the basis of their continued existence as peoples, in accordance with their own
cultural patterns, social institutions and legal systems.

This historical continuity may consist of the continuation, for an extended

period reaching into the present, of one or more of the following factors:
(a) Occupation of ancestral lands, or at least of part of them;
(b) Common ancestry with the original occupants of these lands;

(c) Culture in general, or in speci c manifestations (such as religion,

living under a tribal system, membership of an indigenous
community, dress, means of livelihood, life-style, etc.);

(d) Language (whether used as the only language, as mother-tongue,

as the habitual means of communication at home or in the family,
or as the main, preferred, habitual, general or normal language);
(e) Residence in certain parts of the country; or in certain regions of the
world;
(f) Other relevant facts. 6

In Philippine constitutional law, the term "indigenous peoples" pertains to those

groups of Filipinos who have retained a high degree of continuity from pre-Conquest
culture. 7 Philippine legal history, however, has not been kind to the indigenous peoples,
characterized them as "uncivilized," 8 "backward people," 9 with "barbarous practices" 1 0 and
"a low order of intelligence." 1 1
Drawing inspiration from both our fundamental law and international law, IPRA now
employs the politically-correct conjunctive term "indigenous peoples/indigenous cultural
communities" as follows:
SECTION 3. De nition of Terms . — For purposes of this Act, the
following terms shall mean:
xxx xxx xxx
(h) Indigenous peoples/Indigenous cultural communities. — refer to a
group of people or homogenous societies identi ed by self-ascription and
ascription by others, who have continuously lived as organized community on
communally bounded and de ned territory, and who have, under claims of
ownership since time immemorial, occupied, possessed and utilized such
territories, sharing common bonds of language, customs, traditions, and other
distinctive cultural traits, or who have, through resistance to political, social and
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 cultural inroads of colonization, non-indigenous religions and cultures, became
historically differentiated from the majority of Filipinos. Indigenous peoples shall
likewise include peoples who are regarded as indigenous on account of their
descent from the populations which inhabited the country at the time of conquest
or colonization, or at the time of inroads of non-indigenous religions and cultures,
or the establishment of present State boundaries, who retain some or all of their
own social, economic, cultural and political institutions, but who may have been
displaced from their traditional domains or who may have resettled outside their
ancestral domains . . . .

Long before the Spaniards set foot in these islands, the indigenous peoples were
already plowing our soil and hunting in our forests. The Filipinos of Aeta and Malay stock,
who were the original inhabitants of our archipelago, were, at that time, practicing a native
culture. From the time the Spaniards arrived up to the early part of the American regime, 1 2
these native inhabitants resisted foreign invasion, relentlessly ghting for their lands.
Today, from the remote uplands of Northern Luzon, to Palawan, Mindoro and Mindanao,
the indigenous peoples continue to live on and cultivate their ancestral lands, the lands of
their forefathers.
Though Filipinos today are essentially of the same stock as the indigenous peoples,
our national culture exhibits only the last vestiges of this native culture. Centuries of
colonial rule and neocolonial domination have created a discernible distinction between
the cultural majority and the group of cultural minorities. 1 3 The extant Philippine national
culture is the culture of the majority; its indigenous roots were replaced by foreign cultural
elements that are decidedly pronounced, if not dominant. 1 4 While the culture of the
majority reoriented itself to Western in uence, the culture of the minorities has retained its
essentially native character.
One of every six Filipinos is a member of an indigenous cultural community. Around
twelve million Filipinos are members of the one hundred and ten or so indigenous cultural
communities, 1 5 accounting for more than seventeen per centum of the estimated seventy
million Filipinos 1 6 in our country. Sadly, the indigenous peoples are one of the poorest
sectors of Philippine society. The incidence of poverty and malnutrition among them is
signi cantly higher than the national average. The indigenous peoples are also among the
most powerless. Perhaps because of their inability to speak the language of law and
power, they have been relegated to the fringes of society. They have little, if any, voice in
national politics and enjoy the least protection from economic exploitation.
The Constitutional Policies on Indigenous Peoples
The framers of the 1987 Constitution, looking back to the long destitution of our
less fortunate brothers, ttingly saw the historic opportunity to actualize the ideals of
people empowerment and social justice, and to reach out particularly to the marginalized
sectors of society, including the indigenous peoples. They incorporated in the fundamental
law several provisions recognizing and protecting the rights and interests of the
indigenous peoples, to wit:
SECTION 22. The State recognizes and promotes the rights of
indigenous peoples within the framework of national unity and development. 1 7
SECTION 5. 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.
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 The Congress may provide for the applicability of customary laws
governing property rights and relations in determining the ownership and extent
of ancestral domains. 1 8
SECTION 1. The Congress shall give the highest priority to the
enactment of measures that protect and enhance the right of all the people to
human dignity, reduce social, economic and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition, ownership, use and
disposition of property and its increments. 1 9
SECTION 6. 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, subject to prior rights, homestead rights of small settlers, and
the rights of indigenous communities to their ancestral lands. 2 0
SECTION 17. The State shall recognize, respect, and protect the rights
of indigenous cultural communities to preserve and develop their cultures,
traditions, and institutions. It shall consider these rights in the formulation of
national plans and policies. 2 1
SECTION 12. The Congress may create a consultative body to advise
the President on policies affecting indigenous cultural communities, the majority
of the members of which shall come from such communities. 2 2

IPRA was enacted precisely to implement the foregoing constitutional provisions. It

provides, among others, that the State shall recognize and promote the rights of
indigenous peoples within the framework of national unity and development, protect their
rights over the ancestral lands and ancestral domains and recognize the applicability of
customary laws governing property rights or relations in determining the ownership and
extent of the ancestral domains. 2 3 Moreover, IPRA enumerates the civil and political rights
of the indigenous peoples; 2 4 spells out their social and cultural rights; 2 5 acknowledges a
general concept of indigenous property right and recognizes title thereto; 2 6 and creates
the NCIP as an independent agency under the Office of the President. 2 7
Preliminary Issues
A. The petition presents an actual controversy.
The time-tested standards for the exercise of judicial review are: (1) the existence of
an appropriate case; (2) an interest personal and substantial by the party raising the
constitutional question; (3) the plea that the function be exercised at the earliest
opportunity; and (4) the necessity that the constitutional question be passed upon in order
to decide the case. 2 8
Courts can only decide actual controversies, not hypothetical questions or cases. 2 9
The threshold issue, therefore, is whether an "appropriate case" exists for the exercise of
judicial review in the present case.
An "actual case or controversy" means an existing case or controversy which is both
ripe for resolution and susceptible of judicial determination, and that which is not
conjectural or anticipatory, 3 0 or that which seeks to resolve hypothetical or feigned
constitutional problems. 3 1 A petition raising a constitutional question does not present an
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 "actual controversy," unless it alleges a legal right or power. Moreover, it must show that a
con ict of rights exists, for inherent in the term "controversy" is the presence of opposing
views or contentions. 3 2 Otherwise, the Court will be forced to resolve issues which remain
unfocused because they lack such concreteness provided when a question emerges
precisely framed from a clash of adversary arguments exploring every aspect of a multi-
faceted situation embracing con icting and demanding interests. 3 3 The controversy must
also be justiciable; that is, it must be susceptible of judicial determination. 3 4
In the case at bar, there exists a live controversy involving a clash of legal rights. A
law has been enacted, and the Implementing Rules and Regulations approved. Money has
been appropriated and the government agencies concerned have been directed to
implement the statute. It cannot be successfully maintained that we should await the
adverse consequences of the law in order to consider the controversy actual and ripe for
judicial resolution. It is precisely the contention of the petitioners that the law, on its face,
constitutes an unconstitutional abdication of State ownership over lands of the public
domain and other natural resources. Moreover, when the State machinery is set into
motion to implement an alleged unconstitutional statute, this Court possesses su cient
authority to resolve and prevent imminent injury and violation of the constitutional process.
B. Petitioners, as citizens and taxpayers, have the requisite standing to raise the
constitutional questions herein.
In addition to the existence of an actual case or controversy, a person who assails
the validity of a statute must have a personal and substantial interest in the case, such that,
he has sustained, or will sustain, a direct injury as a result of its enforcement. 3 5 Evidently,
the rights asserted by petitioners as citizens and taxpayers are held in common by all the
citizens, the violation of which may result only in a "generalized grievance." 3 6 Yet, in a
sense, all citizen's and taxpayer's suits are efforts to air generalized grievances about the
conduct of government and the allocation of power. 3 7
In several cases, the Court has adopted a liberal attitude with regard to standing. 3 8
The proper party requirement is considered as merely procedural, 3 9 and the Court has
ample discretion with regard thereto. 4 0 As early as 1910, the Court in the case of Severino
vs. Governor General 4 1 held:
. . . [W]hen the relief is sought merely for the protection of private rights, the
relator must show some personal or special interest in the subject matter, since he
is regarded as the real party in interest and his right must clearly appear. Upon the
other hand, when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest, and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special interest
in the result, it being su cient to show that he is a citizen and as such interested
in the execution of the laws. 4 2
This Court has recognized that a "public right," or that which belongs to the people at
large, may also be the subject of an actual case or controversy. In Severino, we ruled that a
private citizen may enforce a "public right" in behalf of other citizens. We opined therein
that:
. . . [T]he right which [petitioner] seeks to enforce is not greater or different
from that of any other quali ed elector in the municipality of Silay. It is also true
that the injury which he would suffer in case he fails to obtain the relief sought
would not be greater or different from that of the other electors; but he is seeking
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 to enforce a public right as distinguished from a private right. The real party in
interest is the public, or the quali ed electors of the town of Silay. Each elector
has the same right and would suffer the same injury. Each elector stands on the
same basis with reference to maintaining a petition whether or not the relief
sought by the relator should be granted. 4 3

In Tañada v. Tuvera, 4 4 the Court enforced the "public right" to due process and to be
informed of matters of public concern.
In Garcia vs. Board of Investments, 4 5 the Court upheld the "public right" to be heard
or consulted on matters of national concern.
I n Oposa v. Factoran, 4 6 the Court recognized the "public right" of citizens to "a
balanced and healthful ecology which, for the rst time in our nation's constitutional
history, is solemnly incorporated in the fundamental law." 4 7 Mr. Justice (now Chief
Justice) Hilario G. Davide, Jr., delivering the opinion of the Court, stated that:
Such a right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation — aptly and
ttingly stressed by petitioners — the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for they are assumed to exist from the
inception of humankind. 4 8
Petitioners, as citizens, possess the "public right" to ensure that the national
patrimony is not alienated and diminished in violation of the Constitution. Since the
government, as the guardian of the national patrimony, holds it for the bene t of all
Filipinos without distinction as to ethnicity, it follows that a citizen has su cient interest to
maintain a suit to ensure that any grant of concessions covering the national economy and
patrimony strictly complies with constitutional requirements. Thus, the preservation of the
integrity and inviolability of the national patrimony is a proper subject of a citizen's suit.
In addition, petitioners, as taxpayers, possess the right to restrain o cials from
wasting public funds through the enforcement of an unconstitutional statute. It is well-
settled that a taxpayer has the right to enjoin public o cials from wasting public funds
through the implementation of an unconstitutional statute, 4 9 and by necessity, he may
assail the validity of a statute appropriating public funds. 5 0 The taxpayer has paid his
taxes and contributed to the public coffers and, thus, may inquire into the manner by which
the proceeds of his taxes are spent. The expenditure by an o cial of the State for the
purpose of administering an invalid law constitutes a misapplication of such funds. 5 1
The IPRA appropriates funds as indicated in its title: "An Act to Recognize, Protect
and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating
the National Commission on Indigenous Peoples, Establishing Implementing Mechanisms,
Appropriating Funds Therefor, and for Other Purposes." In the same manner, Section 79
authorizes for the expenditure of public funds by providing that "the amount necessary to
finance [its] initial implementation shall be charged against the current year's appropriation
for the O ce for Northern Cultural Communities (the "ONCC") and the O ce for Southern
Cultural Communities (the "OSCC")," 5 2 which were merged as organic o ces of the NCIP.
5 3 Thus, the IPRA is a valid subject of a taxpayer's suit.

C. The petition for prohibition and mandamus is not an improper remedy.

Prohibition is an extraordinary writ directed against any tribunal, corporation, board,
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 o cer or person, whether exercising judicial, quasi-judicial or ministerial functions,
ordering said entity or person to desist from further proceedings when said proceedings
are without or in excess of said entity's or person's jurisdiction, or are accompanied with
grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law. 5 4 Mandamus, on the other hand, is an extraordinary
writ commanding a tribunal, corporation, board, o cer or person, immediately or at some
other speci ed time, to do the act required to be done, when said entity or person
unlawfully neglects the performance of an act which the law speci cally enjoins as a duty
resulting from an o ce, trust or station, or when said entity or person unlawfully excludes
another from the use and enjoyment of a right or o ce to which such other is entitled, and
there is no other plain, speedy and adequate remedy in the ordinary course of law. 5 5
In this case, the petitioners pray that respondents be restrained from implementing
the challenged provisions of the IPRA and its Implementing Rules and the assailed DENR
Circular No. 2, series of 1998, and that the same o cials be enjoined from disbursing
public funds for the implementation of the said law and rules. They further ask that the
Secretary of the DENR be compelled to perform his duty to control and supervise the
activities pertaining to natural resources.
Prohibition will lie to restrain the public o cials concerned from implementing the
questioned provisions of the IPRA and from disbursing funds in connection therewith if the
law is found to be unconstitutional. Likewise, mandamus will lie to compel the Secretary of
the DENR to perform his duty to control and supervise the exploration, development,
utilization and conservation of the country's natural resources. Consequently, the petition
for prohibition and mandamus is not an improper remedy for the relief sought.
D. Notwithstanding the failure of petitioners to observe the hierarchy of courts, the
Court assumes jurisdiction over the petition in view of the importance of the issues
raised therein.
Between two courts of concurrent original jurisdiction, it is the lower court that
should initially pass upon the issues of a case. That way, as a particular case goes through
the hierarchy of courts, it is shorn of all but the important legal issues or those of rst
impression, which are the proper subject of attention of the appellate court. This is a
procedural rule borne of experience and adopted to improve the administration of justice.
ADaSET

This Court has consistently enjoined litigants to respect the hierarchy of courts.
Although this Court has concurrent jurisdiction with the Regional Trial Courts and the Court
of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction, 5 6 such concurrence does not give a party unrestricted freedom of
choice of court forum. The resort to this Court's primary jurisdiction to issue said writs
shall be allowed only where the redress desired cannot be obtained in the appropriate
courts or where exceptional and compelling circumstances justify such invocation. 5 7 We
held in People v. Cuaresma 5 8 that:
A becoming regard for judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against rst level ("inferior")
courts should be led with the Regional Trial Court, and those against the latter,
with the Court of Appeals. A direct invocation of the Supreme Court's original
jurisdiction to issue these writs should be allowed only where there are special
and important reasons therefor, clearly and speci cally set out in the petition .
This is established policy. It is a policy necessary to prevent inordinate demands
upon the Court's time and attention which are better devoted to those matters
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 within its exclusive jurisdiction, and to prevent further over-crowding of the Court's
docket . . . . 5 9 (Italics supplied.)

IPRA aims to rectify the historical injustice in icted upon indigenous peoples. Its
impact upon the lives not only of the indigenous peoples but also upon the lives of all
Filipinos cannot be denied. The resolution of this case by the Court at the earliest
opportunity is necessary if the aims of the law are to be achieved. This reason is
compelling enough to allow petitioners' invocation of this Court's jurisdiction in the rst
instance.
Substantive Issues
Primary Issue
The issue of prime concern raised by petitioners and the Solicitor General revolves
around the constitutionality of certain provisions of IPRA, speci cally Sections 3(a), 3(b), 5,
6, 7, 8, 57, 58 and 59. These provisions allegedly violate Section 2, Article XII of the
Constitution, which states:
SECTION 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, sheries, forests
or timber, wildlife, ora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens.
Such agreements may be for a period not exceeding twenty- ve years, renewable
for not more than twenty- ve years, and under such terms and conditions as may
be provided by law. In cases of water rights for irrigation, water supply, sheries,
or industrial uses other than the development of water power, bene cial use may
be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
The Congress, may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative sh farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons.
The President may enter into agreements with foreign-owned corporations
involving either technical or nancial assistance for large-scale exploration,
development and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scienti c
and technical resources.
The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.

Under IPRA, indigenous peoples may obtain the recognition of their right of
ownership 6 0 over ancestral lands and ancestral domains by virtue of native title. 6 1 The
term "ancestral lands" under the statute refers to lands occupied by individuals, families
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 and clans who are members of indigenous cultural communities, including residential lots,
rice terraces or paddies, private forests, swidden farms and tree lots. These lands are
required to have been "occupied, possessed and utilized" by them or through their
ancestors "since time immemorial, continuously to the present." 6 2 On the other hand,
"ancestral domains" is de ned as areas generally belonging to indigenous cultural
communities, including ancestral lands, forests, pasture, residential and agricultural lands,
hunting grounds, worship areas, and lands no longer occupied exclusively by indigenous
cultural communities but to which they had traditional access, particularly the home
ranges of indigenous cultural communities who are still nomadic or shifting cultivators.
Ancestral domains also include inland waters, coastal areas and natural resources therein.
6 3 Again, the same are required to have been "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." 6 4 Under Section 56,
property rights within the ancestral domains already existing and/or vested upon
effectivity of said law "shall be recognized and respected."
Ownership is the crux of the issue of whether the provisions of IPRA pertaining to
ancestral lands, ancestral domains, and natural resources are unconstitutional. The
fundamental question is, who, between the State and the indigenous peoples, are the
rightful owners of these properties?
It bears stressing that a statute should be construed in harmony with, and not in
violation, of the fundamental law. 6 5 The reason is that the legislature, in enacting a statute,
is assumed to have acted within its authority and adhered to the constitutional limitations.
Accordingly, courts should presume that it was the intention of the legislature to enact a
valid, sensible, and just law and one which operates no further than may be necessary to
effectuate the specific purpose of the law. 6 6
A. The provisions of IPRA recognizing the ownership of indigenous
peoples over the ancestral lands and ancestral domains are not
unconstitutional.
In support of their theory that ancestral lands and ancestral domains are part of the
public domain and, thus, owned by the State, pursuant to Section 2, Article XII of the
Constitution, petitioners and the Solicitor General advance the following arguments:
First, according to petitioners, the King of Spain under international law
acquired exclusive dominion over the Philippines by virtue of discovery and
conquest. They contend that the Spanish King under the theory of jura regalia,
which was introduced into Philippine law upon Spanish conquest in 1521,
acquired title to all the lands in the archipelago.

Second, petitioners and the Solicitor General submit that ancestral lands
and ancestral domains are owned by the State. They invoke the theory of jura
regalia which imputes to the State the ownership of all lands and makes the State
the original source of all private titles. They argue that the Philippine State, as
successor to Spain and the United States, is the source of any asserted right of
ownership in land.
Third, petitioners and the Solicitor General concede that the Cariño doctrine
exists. However, petitioners maintain that the doctrine merely states that title to
lands of the public domain may be acquired by prescription. The Solicitor General,
for his part, argues that the doctrine applies only to alienable lands of the public
domain and, thus, cannot be extended to other lands of the public domain such
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 as forest or timber, mineral lands, and national parks.
Fourth, the Solicitor General asserts that even assuming that native title
over ancestral lands and ancestral domains existed by virtue of the Cariño
doctrine, such native title was extinguished upon the rati cation of the 1935
Constitution.
Fifth, petitioners admit that Congress is mandated under Section 5, Article
XII of the Constitution to protect that rights of indigenous peoples to their
ancestral lands and ancestral domains. However, they contend that the mandate
is subject to Section 2, Article XII and the theory of jura regalia embodied therein.
According to petitioners, the recognition and protection under R.A. 8371 of the
right of ownership over ancestral lands and ancestral domains is far in excess of
the legislative power and constitutional mandate of Congress.
Finally, on the premise that ancestral lands and ancestral domains are
owned by the State, petitioners posit that R.A. 8371 violates Section 2, Article XII
of the Constitution which prohibits the alienation of non-agricultural lands of the
public domain and other natural resources.

I am not persuaded by these contentions.

Undue reliance by petitioners and the Solicitor General on the theory of jura regalia is
understandable. Not only is the theory well recognized in our legal system; it has been
regarded, almost with reverence, as the immutable postulate of Philippine land law. It has
been incorporated into our fundamental law and has been recognized by the Court. 6 7
Generally, under the concept of jura regalia, private title to land must be traced to
some grant, express or implied, from the Spanish Crown or its successors, the American
Colonial government, and thereafter, the Philippine Republic. The belief that the Spanish
Crown is the origin of all land titles in the Philippines has persisted because title to land
must emanate from some source for it cannot issue forth from nowhere. 6 8
In its broad sense, the term "jura regalia" refers to royal rights, 6 9 or those rights
which the King has by virtue of his prerogatives. 7 0 In Spanish law, it refers to a right which
the sovereign has over anything in which a subject has a right of property or propriedad. 7 1
These were rights enjoyed 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
King, and while the use of lands was granted out to others who were permitted to hold
them under certain conditions, the King theoretically retained the title. 7 2 By ction of law,
the King was regarded as the original proprietor of all lands, and the true and only source
of title, and from him all lands were held. 7 3 The theory of jura regalia was therefore
nothing more than a natural fruit of conquest. 7 4
The Regalian theory, however, does not negate native title to lands held in private
ownership since time immemorial. In the landmark case of Cariño vs. Insular Government
7 5 the United States Supreme Court, reversing the decision 7 6 of the pre-war Philippine
Supreme Court, made the following pronouncement:
. . . Every presumption is and ought to be taken against the Government in
a case like the present. It might, perhaps, be proper and su cient to say that
when, as far back as testimony or memory goes, the land has been held by
individuals under a claim of private ownership, it will be presumed to have been
held in the same way from before the Spanish conquest, and never to have been
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 public land. . . . . 7 7 (Italics supplied.)
The above ruling institutionalized the recognition of the existence of native title to
land, or ownership of land by Filipinos by virtue of possession under a claim of ownership
since time immemorial and independent of any grant from the Spanish Crown, as an
exception to the theory of jura regalia.
In Cariño, an Igorot by the name of Mateo Cariño applied for registration in his name
of an ancestral land located in Benguet. The applicant established that he and his
ancestors had lived on the land, had cultivated it, and had used it as far they could
remember. He also proved that they had all been recognized as owners, the land having
been passed on by inheritance according to native custom. However, neither he nor his
ancestors had any document of title from the Spanish Crown. The government opposed
the application for registration, invoking the theory of jura regalia. On appeal, the United
States Supreme Court held that the applicant was entitled to the registration of his native
title to their ancestral land.
Cariño was decided by the U.S. Supreme Court in 1909, at a time when decisions of
the U.S. Court were binding as precedent in our jurisdiction. 7 8 We applied the Cariño
doctrine in the 1946 case of Oh Cho vs. Director of Lands, 7 9 where we stated that "[a]ll
lands that were not acquired from the Government either by purchase or by grant, belong
to the public domain, but [a]n exception to the rule would be any land that should have
been in the possession of an occupant and of his predecessors in interest since time
immemorial, for such possession would justify the presumption that the land had never
been part of the public domain or that it had been private property even before the Spanish
conquest." 8 0
Petitioners however aver that the U.S. Supreme Court's ruling in Cariño was
premised on the fact that the applicant had complied with the requisites of acquisitive
prescription, having established that he and his predecessors-in-interest had been in
possession of the property since time immemorial. In effect, petitioners suggest that title
to the ancestral land applied for by Cariño was transferred from the State, as original
owner, to Cariño by virtue of prescription. They conclude that the doctrine cannot be the
basis for decreeing "by mere legislative at . . . that ownership of vast tracts of land
belongs to [indigenous peoples] without judicial confirmation." 8 1
The Solicitor General, for his part, claims that the Cariño doctrine applies only to
alienable lands of the public domain and, as such, cannot be extended to other lands of the
public domain such as forest or timber, mineral lands, and national parks.
There is no merit in these contentions.
A proper reading of Cariño would show that the doctrine enunciated therein applies
only to lands which have always been considered as private, and not to lands of the public
domain, whether alienable or otherwise. A distinction must be made between ownership of
land under native title and ownership by acquisitive prescription against the State.
Ownership by virtue of native title presupposes that the land has been held by its
possessor and his predecessors-in-interest in the concept of an owner since time
immemorial. The land is not acquired from the State, that is, Spain or its successors-in-
interest, the United States and the Philippine Government. There has been no transfer of
title from the State as the land has been regarded as private in character as far back as
memory goes. In contrast, ownership of land by acquisitive prescription against the State
involves a conversion of the character of the property from alienable public land to private
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 land, which presupposes a transfer of title from the State to a private person. Since native
title assumes that the property covered by it is private land and is deemed never to have
been part of the public domain, the Solicitor General's thesis that native title under Cariño
applies only to lands of the public domain is erroneous. Consequently, the classi cation of
lands of the public domain into agricultural, forest or timber, mineral lands, and national
parks under the Constitution 8 2 is irrelevant to the application of the Cariño doctrine
because the Regalian doctrine which vests in the State ownership of lands of the public
domain does not cover ancestral lands and ancestral domains.
Legal history supports the Cariño doctrine.
When Spain acquired sovereignty over the Philippines by virtue of its discovery and
occupation thereof in the 16th century and the Treaty of Tordesillas of 1494 which it
entered into with Portugal, 8 3 the continents of Asia, the Americas and Africa were
considered as terra nullius although already populated by other peoples. 8 4 The discovery
and occupation by the European States, who were then considered as the only members of
the international community of civilized nations, of lands in the said continents were
deemed sufficient to create title under international law. 8 5
Although Spain was deemed to have acquired sovereignty over the Philippines, this
did not mean that it acquired title to all lands in the archipelago. By virtue of the colonial
laws of Spain, the Spanish Crown was considered to have acquired dominion only over the
unoccupied and unclaimed portions of our islands. 8 6
In sending the rst expedition to the Philippines, Spain did not intend to deprive the
natives of their property. Miguel Lopez de Legazpi was under instruction of the Spanish
King to do no harm to the natives and to their property. In this regard, an authority on the
early Spanish colonial period in the Philippines wrote:
The government of [the King of Spain] Philip II regarded the Philippines as
a challenging opportunity to avoid a repetition of the sanguinary conquests of
Mexico and Peru. In his written instructions for the Adelantado Legazpi, who
commanded the expedition, Philip II envisaged a bloodless paci cation of the
archipelago. This extraordinary document could have been lifted almost verbatim
from the lectures of the Dominican theologian, Francisco de Vitoria, delivered in
the University of Salamanca. The King instructed Legazpi to inform the natives
that the Spaniards had come to do no harm to their persons or to their property.
The Spaniards intended to live among them in peace and in friendship and "to
explain to them the law of Jesus Christ by which they will be saved." Although the
Spanish expedition could defend themselves if attacked, the royal instructions
admonished the commander to commit no aggressive act which might arouse
native hostility. 8 7

Spanish colonial laws recognized and respected Filipino landholdings including

native land occupancy. 8 8 Thus, the Recopilacion de Leyes de las Indias expressly
conferred ownership of lands already held by the natives. 8 9 The royal decrees of 1880 and
1894 did not extinguish native title to land in the Philippines. The earlier royal decree, dated
June 25, 1880, provided that all those in "unlawful possession of royal lands" must legalize
their possession by means of adjustment proceedings, 9 0 and within the period speci ed.
The later royal decree, dated February 13, 1894, otherwise known as the Maura Law,
declared that titles that were capable of adjustment under the royal decree of 1880, but
for which adjustment was not sought, were forfeited. Despite the harsh wording of the
Maura Law, it was held in the case of Cariño that the royal decree of 1894 should not be
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 construed as con scation of title, but merely as the withdrawal of the privilege of
registering such title. 9 1
Neither was native title disturbed by the Spanish cession of the Philippines to the
United States, contrary to petitioners' assertion that the US merely succeeded to the rights
of Spain, including the latter's rights over lands of the public domain. 9 2 Under the Treaty of
Paris of December 10, 1898, the cession of the Philippines did not impair any right to
property existing at the time. 9 3 During the American colonial regime, native title to land
was respected, even protected. The Philippine Bill of 1902 provided that property and
rights acquired by the US through cession from Spain were to be administered for the
bene t of the Filipinos. 9 4 In obvious adherence to libertarian principles, McKinley's
Instructions, as well as the Philippine Bill of 1902, contained a bill of rights embodying the
safeguards of the US Constitution. One of these rights, which served as an inviolable rule
upon every division and branch of the American colonial government in the Philippines, 9 5
was that "no person shall be deprived of life, liberty, or property without due process of
law." 9 6 These vested rights safeguarded by the Philippine Bill of 1902 were in turn
expressly protected by the due process clause of the 1935 Constitution. Resultantly,
property rights of the indigenous peoples over their ancestral lands and ancestral domains
were firmly established in law.
Nonetheless, the Solicitor General takes the view that the vested rights of
indigenous peoples to their ancestral lands and domains were "abated by the direct act by
the sovereign Filipino people of ratifying the 1935 Constitution." 9 7 He advances the
following arguments:
The Sovereign, which is the source of all rights including ownership, has
the power to restructure the consolidation of rights inherent in ownership in the
State. Through the mandate of the Constitutions that have been adopted, the
State has wrested control of those portions of the natural resources it deems
absolutely necessary for social welfare and existence. It has been held that the
State may impair vested rights through a legitimate exercise of police power.
Vested rights do not prohibit the Sovereign from performing acts not only
essential to but determinative of social welfare and existence. To allow otherwise
is to invite havoc in the established social system. . . .
Time-immemorial possession does not create private ownership in cases
of natural resources that have been found from generation to generation to be
critical to the survival of the Sovereign and its agent, the State. 9 8

Stated simply, the Solicitor General's argument is that the State, as the source of all
titles to land, had the power to re-vest in itself, through the 1935 Constitution, title to all
lands, including ancestral lands and ancestral domains. While the Solicitor General admits
that such a theory would necessarily impair vested rights, he reasons out that even vested
rights of ownership over ancestral lands and ancestral domains are not absolute and may
be impaired by the legitimate exercise of police power.
I cannot agree. The text of the provision of the 1935 Constitution invoked by the
Solicitor General, while embodying the theory of jura regalia, is too clear for any
misunderstanding. It simply declares that "all agricultural, timber, and mineral lands of the
public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, and other natural resources of the Philippines belong to the State." 9 9
Nowhere does it state that certain lands which are "absolutely necessary for social welfare
and existence," including those which are not part of the public domain, shall thereafter be
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 owned by the State. If there is any room for constitutional construction, the provision
should be interpreted in favor of the preservation, rather than impairment or
extinguishment, of vested rights. Stated otherwise, Section 1, Article XII of the 1935
Constitution cannot be construed to mean that vested right which had existed then were
extinguished and that the landowners were divested of their lands, all in the guise of
"wrest[ing] control of those portions of the natural resources [which the State] deems
absolutely necessary for social welfare and existence." On the contrary, said Section
restated the fundamental rule against the diminution of existing rights by expressly
providing that the ownership of lands of the public domain and other natural resources by
the State is "subject to any existing right, grant, lease, or concessions." The "existing rights"
that were intended to be protected must, perforce, include the right of ownership by
indigenous peoples over their ancestral lands and domains. The words of the law should
be given their ordinary or usual meaning, 1 0 0 and the term "existing rights" cannot be
assigned an unduly restrictive definition.
Petitioners concede that Congress is mandated under Section 5, Article XII of the
1987 Constitution 1 0 1 to protect the rights of indigenous peoples to their ancestral lands
and ancestral domains. Nonetheless, they contend that the recognition and protection
under IPRA of the right of ownership of indigenous peoples over ancestral lands and
ancestral domains are far in excess of the legislative power and constitutional mandate of
the Congress, 1 0 2 since such recognition and protection amount to the alienation of lands
of the public domain, which is proscribed under Section 2, Article XII of the Constitution.
Section 5, Article XII of the Constitution expresses the sovereign intent to "protect
the rights of indigenous peoples to their ancestral lands." In its general and ordinary sense,
the term "right" refers to any legally enforceable claim. 1 0 3 It is a power, privilege, faculty or
demand inherent in one person and incident upon another. 1 0 4 When used in relation to
property, "right" includes any interest in or title to an object, or any just and legal claim to
hold, use and enjoy it. 1 0 5 Said provision in the Constitution cannot, by any reasonable
construction, be interpreted to exclude the protection of the right of ownership over such
ancestral lands. For this reason, Congress cannot be said to have exceeded its
constitutional mandate and power in enacting the provisions of IPRA, speci cally Sections
7(a) and 8, which recognize the right of ownership of the indigenous peoples over
ancestral lands. TECcHA

The second paragraph of Section 5, Article XII also grants Congress the power to
"provide for the applicability of customary laws governing property rights or relations in
determining the ownership and extent of ancestral domains." In light of this provision, does
Congress have the power to decide whether ancestral domains shall be private property or
part of the public domain? Also, does Congress have the power to determine whether the
"extent" of ancestral domains shall include the natural resources found therein?
It is readily apparent from the constitutional records that the framers of the
Constitution did not intend Congress to decide whether ancestral domains shall be public
or private property. Rather, they acknowledged that ancestral domains shall be treated as
private property, and that customary laws shall merely determine whether such private
ownership is by the entire indigenous cultural community, or by individuals, families, or
clans within the community. The discussion below between Messrs. Regalado and
Bennagen and Mr. Chief Justice Davide, Jr., then members of the 1986 Constitutional
Commission, is instructive:
MR. REGALADO. Thank you, Madame President. May I seek some
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 clari cations from either Commissioner Bennagen or Commissioner Davide
regarding this phrase "CONGRESS SHALL PROVIDE FOR THE APPLICABILITY OF
CUSTOMARY LAWS GOVERNING PROPERTY RIGHTS OR RELATIONS in
determining the ownership and extent of the ancestral domain," because
ordinarily it is the law on ownership and the extent thereof which determine the
property rights or relations arising therefrom. On the other hand, in this proposed
amendment the phraseology is that it is the property rights or relations which
shall be used as the basis in determining the ownership and extent of the
ancestral domain. I assume there must be a certain difference in the customary
laws and our regular civil laws on property.
MR. DAVIDE. That is exactly the reason, Madam President, why we will
leave it to Congress to make the necessary exception to the general law on
property relations.
MR. REGALADO. I was thinking if Commissioner Bennagen could give us
an example of such a customary law wherein it is the property rights and relations
that determine the ownership and the extent of that ownership, unlike the basic
fundamental rule that it is the ownership and the extent of ownership which
determine the property rights and relations arising therefrom and consequent
thereto. Perhaps, these customary laws may have a different provision or thrust
so that we could make the corresponding suggestions also by way of an
amendment.
MR. DAVIDE. That is exactly my own perception.
MR. BENNAGEN. Let me put it this way.
There is a range of customary laws governing certain types of ownership.
There would be ownership based on individuals, on clan or lineage, or on
community. And the thinking expressed in the consultation is that this should be
codi ed and should be recognized in relation to existing national laws. That is
essentially the concept. 1 0 6 (Italics supplied.)

The intention to treat ancestral domains as private property is also apparent from
the following exchange between Messrs. Suarez and Bennagen:
MR. SUAREZ. When we speak of customary laws governing property rights
or relations in determining the ownership and extent of the ancestral domain, are
we thinking in terms of the tribal ownership or community ownership or of private
ownership within the ancestral lands or ancestral domain?
MR. BENNAGEN. The concept of customary laws is that it is considered as
ownership by private individuals, clans and even communities.
MR. SUAREZ. So, there will be two aspects to this situation. This means
that the State will set aside the ancestral domain and there is a separate law for
that. Within the ancestral domain it could accept more speci c ownership in
terms of individuals within the ancestral lands.
MR. BENNAGEN. Individuals and groups within the ancestral domain. 1 0 7
(Italics supplied.)

It cannot be correctly argued that, because the framers of the Constitution never
expressly mentioned Cariño in their deliberations, they did not intend to adopt the concept
of native title to land, or that they were unaware of native title as an exception to the theory
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 of jura regalia. 1 0 8 The framers of the Constitution, as well as the people adopting it, were
presumed to be aware of the prevailing judicial doctrines concerning the subject of
constitutional provisions, and courts should take these doctrines into consideration in
construing the Constitution. 1 0 9
Having thus recognized that ancestral domains under the Constitution are
considered as private property of indigenous peoples, the IPRA, by a rming or
acknowledging such ownership through its various provisions, merely abides by the
constitutional mandate and does not suffer any vice of unconstitutionality.
Petitioners interpret the phrase "subject to the provisions of this Constitution and
national development policies and programs" in Section 5, Article XII of the Constitution to
mean "as subject to the provision of Section 2, Article XII of the Constitution," which vests
in the State ownership of all lands of the public domain, mineral lands and other natural
resources. Following this interpretation, petitioners maintain that ancestral lands and
ancestral domains are the property of the State.
This proposition is untenable. Indeed, Section 2, Article XII reiterates the
declarations made in the 1935 and 1973 Constitutions on the state policy of conservation
and nationalization of lands of the public domain and natural resources, and is of
paramount importance to our national economy and patrimony. A close perusal of the
records of the 1986 Constitutional Commission reveals that the framers of the
Constitution inserted the phrase "subject to the provisions of this Constitution" mainly to
prevent the impairment of Torrens titles and other prior rights in the determination of what
constitutes ancestral lands and ancestral domains, to wit:
MR. NATIVIDAD. Just one question. I want to clear this section protecting
ancestral lands. How does this affect the Torrens title and other prior rights?
MR. BENNAGEN. I think that was also discussed in the committee hearings
and we did say that in cases where due process is clearly established in terms of
prior rights, these two have to be respected.
MR. NATIVIDAD. The other point is: How vast is this ancestral land? Is it
true that parts of Baguio City are considered as ancestral lands?
MR. BENNAGEN. They could be regarded as such. If the Commissioner still
recalls, in one of the publications that I provided the Commissioners, the parts
could be considered as ancestral domain in relation to the whole population of
Cordillera but not in relation to certain individuals or certain groups.

MR. NATIVIDAD. The Commissioner means that the whole Baguio City is
considered as ancestral land?
MR. BENNAGEN. Yes, in the sense that it belongs to Cordillera or in the
same manner that Filipinos can speak of the Philippine archipelago as ancestral
land, but not in terms of the right of a particular person or particular group to
exploit, utilize, or sell it.
MR. NATIVIDAD. But is clear that the prior rights will be respected.
MR. BENNAGEN. Definitely. 1 1 0

Thus, the phrase "subject to the provisions of this Constitution" was intended by the
framers of the Constitution as a reiteration of the constitutional guarantee that no person
shall be deprived of property without due process of law.
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 There is another reason why Section 5 of Article XII mandating the protection of
rights of the indigenous peoples to their ancestral lands cannot be construed as subject to
Section 2 of the same Article ascribing ownership of all public lands to the State. The
Constitution must be construed as a whole. It is a rule that when construction is proper,
the whole Constitution is examined in order to determine the meaning of any provision.
That construction should be used which would give effect to the entire instrument. 1 1 1
Thus, the provisions of the Constitution on State ownership of public lands, mineral
lands and other natural resources should be read together with the other provisions
thereof which rmly recognize the rights of the indigenous peoples. These, as set forth
hereinbefore, 1 1 2 include: Section 22, Article II, providing that the State recognizes and
promotes the rights of indigenous peoples within the framework of national unity and
development; Section 5, Article XII, calling for the protection of the rights of indigenous
cultural communities to their ancestral lands to ensure their economic, social, and cultural
well-being, and for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domains; Section 1, Article
XIII, directing the removal or reduction of social, economic, political and cultural inequities
and inequalities by equitably diffusing wealth and political power for the common good;
Section 6, Article XIII, directing the application of the principles of agrarian reform or
stewardship in the disposition and utilization of other natural resources, subject to prior
rights, homestead rights of small settlers, and the rights of indigenous communities to
their ancestral lands; Section 17, Article XIV, decreeing that the State shall recognize,
respect, and protect the rights of indigenous cultural communities to preserve and
develop their cultures, traditions, and institutions; and Section 12, Article XVI, authorizing
the Congress to create a consultative body to advise the President on policies affecting
indigenous cultural communities.
Again, as articulated in the Constitution, the rst goal of the national economy is the
more equitable distribution of opportunities, income, and wealth. 1 1 3 Equity is given
prominence as the rst objective of national economic development. 1 1 4 The framers of
the Constitution did not, by the phrase "subject to the provisions of this Constitution and
national development policies and programs," intend to establish a hierarchy of
constitutional norms. As explained by then Commissioner (now Chief Justice) Hilario G.
Davide, Jr., it was not their objective to make certain interests primary or paramount, or to
create absolute limitations or outright prohibitions; rather, the idea is towards the
balancing of interests:
BISHOP BACANI. In Commissioner Davide's formulation of the rst
sentence, he says: "The State, SUBJECT TO THE provisions of this Constitution
AND NATIONAL DEVELOPMENT POLICIES AND PROGRAMS shall guarantee the
rights of cultural or tribal communities to their ancestral lands to insure their
economic, social and cultural well-being." There are at least two concepts here
which receive different weights very often. They are the concepts of national
development policies and programs, and the rights of cultural or tribal
communities to their ancestral lands, et cetera. I would like to ask: When the
Commissioner proposed this amendment, which was the controlling concept? I
ask this because sometimes the rights of cultural minorities are precisely
transgressed in the interest of national development policies and programs.
Hence, I would like to know which is the controlling concept here. Is it the rights of
indigenous peoples to their ancestral lands or is it national development policies
and programs.
MR. DAVIDE. It is not really a question of which is primary or which is more
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 paramount. The concept introduced here is really the balancing of interests. That
is what we seek to attain. We have to balance the interests taking into account the
speci c needs and the speci c interests also of these cultural communities in like
manner that we did so in the autonomous regions. 1 1 5 (Italics supplied.)

B. The provisions of R.A. 8371 do not infringe upon the State's ownership over the
natural resources within the ancestral domains.
Petitioners posit that IPRA deprives the State of its ownership over mineral lands of
the public domain and other natural resources, 1 1 6 as well as the State's full control and
supervision over the exploration, development and utilization of natural resources. 1 1 7
Speci cally, petitioners and the Solicitor General assail Sections 3 (a), 1 1 8 5, 1 1 9 and 7 1 2 0
of IPRA as violative of Section 2, Article XII of the Constitution which states, in part, that "
[a]ll lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, sheries, forests or timber, wildlife, ora and fauna, and other
natural resources are owned by the State." 1 2 1 They would have the Court declare as
unconstitutional Section 3(a) of IPRA because the inclusion of natural resources in the
de nition of ancestral domains purportedly results in the abdication of State ownership
over these resources.
I am not convinced.
Section 3(a) merely de nes the coverage of ancestral domains, and describes the
extent, limit and composition of ancestral domains by setting forth the standards and
guidelines in determining whether a particular area is to be considered as part of and
within the ancestral domains. In other words, Section 3(a) serves only as a yardstick which
points out what properties are within the ancestral domains. It does not confer or
recognize any right of ownership over the natural resources to the indigenous peoples. Its
purpose is definitional and not declarative of a right or title.
The speci cation of what areas belong to the ancestral domains is, to our mind,
important to ensure that no unnecessary encroachment on private properties outside the
ancestral domains will result during the delineation process. The mere fact that Section
3(a) de nes ancestral domains to include the natural resources found therein does not
ipso facto convert the character of such natural resources as private property of the
indigenous peoples. Similarly, Section 5 in relation to Section 3(a) cannot be construed as
a source of ownership rights of indigenous people over the natural resources simply
because it recognizes ancestral domains as their "private but community property."
The phrase "private but community property" is merely descriptive of the indigenous
peoples' concept of ownership as distinguished from that provided in the Civil Code. In
Civil Law, "ownership" is the "independent and general power of a person over a thing for
purposes recognized by law and within the limits established thereby." 1 2 2 The civil law
concept of ownership has the following attributes: jus utendi or the right to receive from
the thing that which it produces, jus abutendi or the right to consume the thing by its use,
jus disponendi or the power to alienate, encumber, transform and even destroy that which
is owned and jus vidicandi or the right to exclude other persons from the possession the
thing owned. 1 2 3 In contrast, the indigenous peoples' concept of ownership emphasizes
the importance of communal or group ownership. By virtue of the communal character of
ownership, the property held in common "cannot be sold, disposed or destroyed" 1 2 4
because it was meant to bene t the whole indigenous community and not merely the
individual member. 1 2 5

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 That IPRA is not intended to bestow ownership over natural resources to the
indigenous peoples is also clear from the deliberations of the bicameral conference
committee on Section 7 which recites the rights of indigenous peoples over their ancestral
domains, to wit:
CHAIRMAN FLAVIER. Accepted. Section 8 126 rights to ancestral domain, this is where we
transferred the other provision but here itself —

HON. DOMINGUEZ. Mr. Chairman, if I may be allowed to make a very short Statement.
Earlier, Mr. Chairman, we have decided to remove the provisions on natural resources because we
all agree that belongs to the State. Now, the plight or the rights of those indigenous communities
living in forest and areas where it could be exploited by mining, by dams, so can we not also
provide a provision to give little protection or either rights for them to be consulted before any
mining areas should be done in their areas, any logging done in their areas or any dam
construction because this has been disturbing our people especially in the Cordilleras. So, if there
could be, if our lawyers or the secretariat could just propose a provision for incorporation here so
that maybe the right to consultation and the right to be compensated when there are damages
within their ancestral lands.
CHAIRMAN FLAVIER. Yes, very well taken but to the best of my recollection both are
already considered in subsequent sections which we are now looking for.

HON. DOMINGUEZ. Thank you.

CHAIRMAN FLAVIER. First of all there is a line that gives priority use for the indigenous
people where they are. Number two, in terms of the mines there is a need for prior consultation of
source which is here already. So, anyway it is on the record that you want to make sure that the
secretariat takes note of those two issues and my assurance is that it is already there and I will
make sure that they cross check.
HON. ADAMAT. I second that, Mr. Chairman.
CHAIRMAN FLAVIER. Okay, thank you. So we now move to Section 8, there is a Senate
version you do not have and if you agree we will adopt that. 1 2 7 (Italics supplied.)

Further, Section 7 makes no mention of any right of ownership of the indigenous

peoples over the natural resources. In fact, Section 7(a) merely recognizes the "right to
claim ownership over lands, bodies of water traditionally and actually occupied by
indigenous peoples, sacred places, traditional hunting and shing grounds, and all
improvements made by them at any time within the domains." Neither does Section 7(b),
which enumerates certain rights of the indigenous peoples over the natural resources
found within their ancestral domains, contain any recognition of ownership vis-a-vis the
natural resources.
What is evident is that the IPRA protects the indigenous peoples' rights and welfare
in relation to the natural resources found within their ancestral domains, 1 2 8 including the
preservation of the ecological balance therein and the need to ensure that the indigenous
peoples will not be unduly displaced when State-approved activities involving the natural
resources located therein are undertaken.
Finally, the concept of native title to natural resources, unlike native title to land, has
not been recognized in the Philippines. NCIP and Flavier, et al. invoke the case of Reavies v.
Fianza 1 2 9 in support of their thesis that native title to natural resources has been upheld in
this jurisdiction. 1 3 0 They insist that "it is possible for rights over natural resources to vest
on a private (as opposed to a public) holder if these were held prior to the 1935
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 Constitution." 1 3 1 However, a judicious examination of Reavies reveals that, contrary to the
position of NCIP and Flavier, et al., the Court did not recognize native title to natural
resources. Rather, it merely upheld the right of the indigenous peoples to claim ownership
of minerals under the Philippine Bill of 1902 . IAEcCa

While as previously discussed, native title to land or private ownership by Filipinos of

land by virtue of time immemorial possession in the concept of an owner was
acknowledged and recognized as far back during the Spanish colonization of the
Philippines, there was no similar favorable treatment as regards natural resources. The
unique value of natural resources has been acknowledged by the State and is the
underlying reason for its consistent assertion of ownership and control over said natural
resources from the Spanish regime up to the present. 132 Natural resources, especially
minerals, were considered by Spain as an abundant source of revenue to nance its battles
in wars against other nations. Hence, Spain, by asserting its ownership over minerals
wherever these may be found, whether in public or private lands, recognized the
separability of title over lands and that over minerals which may be found therein. 1 3 3
On the other hand, the United States viewed natural resources as a source of wealth
for its nationals. As the owner of natural resources over the Philippines after the latter's
cession from Spain, the United States saw it t to allow both Filipino and American citizens
to explore and exploit minerals in public lands, and to grant patents to private mineral
lands. A person who acquired ownership over a parcel of private mineral land pursuant to
the laws then prevailing could exclude other persons, even the State, from exploiting
minerals within his property. 1 3 4 Although the United States made a distinction between
minerals found in public lands and those found in private lands, title in these minerals was
in all cases sourced from the State. The framers of the 1935 Constitution found it
necessary to maintain the State's ownership over natural resources to insure their
conservation for future generations of Filipinos, to prevent foreign control of the country
through economic domination; and to avoid situations whereby the Philippines would
become a source of international con icts, thereby posing danger to its internal security
and independence. 1 3 5
The declaration of State ownership and control over minerals and other natural
resources in the 1935 Constitution was reiterated in both the 1973 1 3 6 and 1987
Constitutions. 1 3 7
Having ruled that the natural resources which may be found within the ancestral
domains belong to the State, the Court deems it necessary to clarify that the jurisdiction of
the NCIP with respect to ancestral domains under Section 52 [i] of IPRA extends only to
the lands and not to the natural resources therein.
Section 52[i] provides:
Turnover of Areas Within Ancestral Domains Managed by Other
Government Agencies. — The Chairperson of the NCIP shall certify that the area
covered is an ancestral domain. The secretaries of the Department of Agrarian
Reform, Department of Environment and Natural Resources, Department of the
Interior and Local Government, and Department of Justice, the Commissioner of
the National Development Corporation, and any other government agency
claiming jurisdiction over the area shall be notified thereof. Such notification shall
terminate any legal basis for the jurisdiction previously claimed.

Undoubtedly, certain areas that are claimed as ancestral domains may still be under
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 the administration of other agencies of the Government, such as the Department of
Agrarian Reform, with respect to agricultural lands, and the Department of Environment
and Natural Resources with respect to timber, forest and mineral lands. Upon the
certi cation of these areas as ancestral domain following the procedure outlined in
Sections 51 to 53 of the IPRA, jurisdiction of the government agency or agencies
concerned over lands forming part thereof ceases. Nevertheless, the jurisdiction of
government agencies over the natural resources within the ancestral domains does not
terminate by such certification because said agencies are mandated under existing laws to
administer the natural resources for the State, which is the owner thereof. To construe
Section 52[i] as divesting the State, through the government agencies concerned, of
jurisdiction over the natural resources within the ancestral domains would be inconsistent
with the established doctrine that all natural resources are owned by the State.
C. The provisions of IPRA pertaining to the utilization of natural resources are not
unconstitutional.
The IPRA provides that indigenous peoples shall have the right to manage and
conserve the natural resources found on the ancestral domains, to bene t from and share
in the pro ts from the allocation and utilization of these resources, and to negotiate the
terms and conditions for the exploration of such natural resources. 1 3 8 The statute also
grants them priority rights in the harvesting, extraction, development or exploitation of any
natural resources within the ancestral domains. 1 3 9 Before the NCIP can issue a
certi cation for the renewal, or grant of any concession, license or lease, or for the
perfection of any production-sharing agreement the prior informed written consent of the
indigenous peoples concerned must be obtained. 1 4 0 In return, the indigenous peoples are
given the responsibility to maintain, develop, protect and conserve the ancestral domains
or portions thereof which are found to be necessary for critical watersheds, mangroves,
wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation. 1 4 1
The Solicitor General argues that these provisions deny the State an active and
dominant role in the utilization of our country's natural resources. Petitioners, on the other
hand, allege that under the Constitution the exploration, development and utilization of
natural resources may only be undertaken by the State, either directly or indirectly through
co-production, joint venture, or production-sharing agreements. 1 4 2 To petitioners, no other
method is allowed by the Constitution. They likewise submit that by vesting ownership of
ancestral lands and ancestral domains in the indigenous peoples, IPRA necessarily gives
them control over the use and enjoyment of such natural resources, to the prejudice of the
State. 1 4 3
Section 2, Article XII of the Constitution provides in paragraph 1 thereof that the
exploration, development and utilization of natural resources must be under the full control
and supervision of the State, which may directly undertake such activities or enter into co-
production, joint venture, or production-sharing agreements. This provision, however,
should not be read in isolation to avoid a mistaken interpretation that any and all forms of
utilization of natural resources other than the foregoing are prohibited. The Constitution
must be regarded as consistent with itself throughout. 1 4 4 No constitutional provision is to
be separated from all the others, or to be considered alone, all provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the
great purposes of the fundamental law. 1 4 5
In addition to the means of exploration, development and utilization of the country's
natural resources stated in paragraph 1, Section 2 of Article XII, the Constitution itself
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 states in the third paragraph of the same section that Congress may, by law, allow small-
scale utilization of natural resources by its citizens. 1 4 6 Further, Section 6, Article XIII,
directs the State, in the disposition and utilization of natural resources, to apply the
principles of agrarian reform or stewardship. 1 4 7 Similarly, Section 7, Article XIII mandates
the State to protect the rights of subsistence shermen to the preferential use of marine
and fishing resources. 1 4 8 Clearly, Section 2, Article XII, when interpreted in view of the pro-
Filipino, pro-poor philosophy of our fundamental law, and in harmony with the other
provisions of the Constitution rather as a sequestered pronouncement, 1 4 9 cannot be
construed as a prohibition against any and all forms of utilization of natural resources
without the State's direct participation.
Through the imposition of certain requirements and conditions for the exploration,
development and utilization of the natural resources under existing laws, 1 5 0 the State
retains full control over such activities, whether done on small-scale basis 1 5 1 or otherwise.
The rights given to the indigenous peoples regarding the exploitation of natural
resources under Sections 7(b) and 57 of IPRA amplify what has been granted to them
under existing laws, such as the Small-Scale Mining Act of 1991 (R.A. 7076) and the
Philippine Mining Act of 1995 (R.A. 7942). R.A. 7076 expressly provides that should an
ancestral land be declared as a people's small-scale mining area, the members of the
indigenous peoples living within said area shall be given priority in the awarding of small-
scale mining contracts. 1 5 2 R.A. 7942 declares that no ancestral land shall be opened for
mining operations without the prior consent of the indigenous cultural community
concerned 1 5 3 and in the event that the members of such indigenous cultural community
give their consent to mining operations within their ancestral land, royalties shall be paid to
them by the parties to the mining to the contract. 1 5 4
In any case, a careful reading of Section 7(b) would reveal that the rights given to the
indigenous peoples are duly circumscribed. These rights are limited only to the following:
"to manage and conserve natural resources within territories and uphold it for future
generations; to bene t and share the pro ts from allocation and utilization of the natural
resources found therein; 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; 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 of these rights."
It must be noted that the right to negotiate terms and conditions granted under
Section 7(b) pertains only to the exploration of natural resources. The term "exploration"
refers only to the search or prospecting of mineral resources, or any other means for the
purpose of determining the existence and the feasibility of mining them for pro t. 1 5 5 The
exploration, which is merely a preliminary activity, cannot be equated with the entire
process of "exploration, development and utilization" of natural resources which under the
Constitution belong to the State.
Section 57, on the other hand, grants the indigenous peoples "priority rights" in the
utilization of natural resources and not absolute ownership thereof. Priority rights does not
mean exclusive rights. What is granted is merely the right of preference or rst
consideration in the award of privileges provided by existing laws and regulations, with due
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 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 mechanical
character in the grant of concessions. Nor does the law negate the exercise of sound
discretion by government entities. Several factors still have to be considered. For example,
the extent and nature of utilization and the consequent impact on the environment and on
the indigenous peoples' way of life are important considerations. Moreover, the indigenous
peoples must show that they live in the area and that they are in the best position to
undertake the required utilization.
It must be emphasized that the grant of said priority rights to indigenous peoples is
not a blanket authority to disregard pertinent laws and regulations. The utilization of said
natural resources is always subject to compliance by the indigenous peoples with existing
laws, such as R.A. 7076 and R.A. 7942 since it is not they but the State, which owns these
resources.
It also bears stressing that the grant of priority rights does not preclude the State
from undertaking activities, or entering into co-production, joint venture or production-
sharing agreements with private entities, to utilize the natural resources which may be
located within the ancestral domains. There is no intention, as between the State and the
indigenous peoples, to create a hierarchy of values; rather, the object is to balance the
interests of the State for national development and those of the indigenous peoples.
Neither does the grant of priority rights to the indigenous peoples exclude non-
indigenous peoples from undertaking the same activities within the ancestral domains
upon authority granted by the proper governmental agency. To do so would unduly limit
the ownership rights of the State over the natural resources.
To be sure, the act of the State of giving preferential right to a particular sector in
the utilization of natural resources is nothing new. As previously mentioned, Section 7,
Article XIII of the Constitution mandates the protection by the State of "the rights of
subsistence shermen, especially of local communities, to the preferential use of
communal marine and fishing resources, both inland and offshore."
Section 57 further recognizes the possibility that the exploration and exploitation of
natural resources within the ancestral domains may disrupt the natural environment as
well as the traditional activities of the indigenous peoples therein. Hence, the need for the
prior informed consent of the indigenous peoples before any search for or utilization of the
natural resources within their ancestral domains is undertaken.
In a situation where the State intends to directly or indirectly undertake such
activities, IPRA requires that the prior informed consent of the indigenous peoples be
obtained. The State must, as a matter of policy and law, consult the indigenous peoples in
accordance with the intent of the framers of the Constitution that national development
policies and programs should involve a systematic consultation to balance local needs as
well as national plans. As may be gathered from the discussion of the framers of the
Constitution on this point, the national plan presumably takes into account the
requirements of the region after thorough consultation. 1 5 6 To this end, IPRA grants to the
indigenous peoples the right to an informed and intelligent participation in the formulation
and implementation of any project, government or private, and the right not to be removed
therefrom without their free and prior informed consent. 1 5 7 As to non-members, the prior
informed consent takes the form of a formal and written agreement between the
indigenous peoples and non-members under the proviso in Section 57 in case the State
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 enters into a co-production, joint venture, or production-sharing agreement with Filipino
citizens, or corporations. This requirement is not peculiar to IPRA. Existing laws and
regulations such as the Philippine Environmental Policy, 1 5 8 the Environmental Impact
System, 1 5 9 the Local Government Code 1 6 0 and the Philippine Mining Act of 1995 1 6 1
already require increased consultation and participation of stakeholders, such as
indigenous peoples, in the planning of activities with significant environment impact.
The requirement in Section 59 that prior written informed consent of the indigenous
peoples must be procured before the NCIP can issue a certi cation for the "issuance,
renewal, or grant of any concession, license or lease, or to the perfection of any
production-sharing agreement," must be interpreted, not as a grant of the power to control
the exploration, development and utilization of natural resources, but merely the imposition
of an additional requirement for such concession or agreement. The clear intent of the law
is to protect the rights and interests of the indigenous peoples which may be adversely
affected by the operation of such entities or licensees.
Corollary Issues
A. IPRA does not violate the Due Process clause.
The rst 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 de nition 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. 1 6 2 Petitioners' contention is erroneous.
Sections 3(a) and 3(b) expressly provide that the de nition of ancestral lands and
ancestral domains are "subject to Section 56," which reads:
SECTION 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. 1 6 3 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
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 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. 1 6 4 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 O ce ("ADO") of the NCIP; third, preliminary report by
the ADO; fourth, posting and publication; and lastly, evaluation by the NCIP upon
submission of the nal report of the ADO. 1 6 5 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. 1 6 6 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 1 6 7 and the application of customary law, 1 6 8 violate the due
process clause of the Constitution. IECcaA

Petitioners point out that IPRA provides that the NCIP shall be composed
exclusively of members of indigenous peoples, 1 6 9 and that the NCIP shall have jurisdiction
over all claims and disputes involving indigenous peoples, 1 7 0 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. 1 7 1 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." 1 7 2
In addition, petitioners claim that IPRA prescribes that customary laws shall be
applied rst in disputes involving property, succession and land, 1 7 3 and that such laws
shall likewise be used in disputes involving indigenous peoples. 1 7 4 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." 1 7 5
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 su cient checks in the law against any abuse by the NCIP of
i t s 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
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 ancestral domains, su ce 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. 1 7 6 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 con icts related to
ancestral domains and lands, involving ICCs/IPs, such as but not limited to
con icting 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 con icts 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.
(Italics 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, 1 7 7 where
all the parties involved are members of indigenous peoples, 1 7 8 speci cally, 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, 1 7 9 and it is not contrary to law, public
order or public policy. 1 8 0 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. 1 8 1
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.
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 The assailed provision of the Implementing Rules provides:
Rule VII. The National Commission on Indigenous Peoples (NCIP)
xxx xxx xxx
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 O ce of the President. As such, the
administrative relationship of the NCIP to the O ce 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 O ce 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 O ce 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. 1 8 2 It has been granted
administrative, 1 8 3 quasi-legislative 1 8 4 and quasi-judicial powers 1 8 5 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 de ned 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. 1 8 6
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, 1 8 7
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 o ce 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 1 8 8 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 nance its projects; 1 8 9 (2) it must obtain the President's approval for
any negotiation for funds and for the acceptance of gifts and/or properties in whatever
form and from whatever source; 1 9 0 (3) the NCIP shall submit annual reports of its
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 operations and achievements to the President, and advise the latter on all matters relating
to the indigenous peoples; 1 9 1 and (4) it shall exercise such other powers as may be
directed by the President. 1 9 2 The President is also given the power to appoint the
Commissioners of the NCIP 1 9 3 as well as to remove them from o ce for cause motu
proprio or upon the recommendation of any indigenous community. 1 9 4
To recapitulate:
(1) The provisions of the IPRA (speci cally Sections 3, paragraphs (a) and
(b), 5, 6, 7, and 8) a rming 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; 1 9 5
(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 bene t from and share in the pro ts 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 1 9 6 and the Philippine Mining Act of 1995. 1 9 7 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; 1 9 8
(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 O ce 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 O ce 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
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 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.

MENDOZA, J.:

This suit was instituted to determine the constitutionality of certain provisions of

R.A. No. 8371, otherwise known as the Indigenous Peoples Rights Act. Petitioners do not
complain of any injury as a result of the application of the statute to them. They assert a
right to seek an adjudication of constitutional questions as citizens and taxpayers, upon
the plea that the questions raised are of "transcendental importance."
The judicial power vested in this Court by Art. VIII, §1 extends only to cases and
controversies for the determination of such proceedings as are established by law for the
protection or enforcement of rights, or the prevention, redress or punishment of wrongs. 1
In this case, the purpose of the suit is not to enforce a property right of petitioners against
the government and other respondents or to demand compensation for injuries suffered
by them as a result of the enforcement of the law, but only to settle what they believe to be
the doubtful character of the law in question. Any judgment that we render in this case will
thus not conclude or bind real parties in the future, when actual litigation will bring to the
Court the question of the constitutionality of such legislation. Such judgment cannot be
executed as it amounts to no more than an expression of opinion upon the validity of the
provisions of the law in question. 2
I do not conceive it to be the function of this Court under Art. VIII, §1 of the
Constitution to determine in the abstract whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the legislative and
executive departments in enacting the IPRA. Our jurisdiction is con ned to cases or
controversies. No one reading Art. VIII, §5 can fail to note that, in enumerating the matters
placed in the keeping of this Court, it uniformly begins with the phrase "all cases. . . ."
The statement that the judicial power includes the duty to determine whether there
has been a grave abuse of discretion was inserted in Art. VIII, §1 not really to give the
judiciary a roving commission to right any wrong it perceives but to preclude courts from
invoking the political question doctrine in order to evade the decision of certain cases even
where violations of civil liberties are alleged.
The statement is based on the ruling of the Court in Lansang v. Garcia, 3 in which this
Court, adopting the submission of the Solicitor General, formulated the following test of its
jurisdiction in such cases:
[J]udicial inquiry into the basis of the questioned proclamation can go no
further than to satisfy the Court not that the President's decision is correct and
that public safety was endangered by the rebellion and justified the suspension of
the writ, but that in suspending the writ, the President did not act arbitrarily .

That is why Art. VII, §18 now confers on any citizen standing to question the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus. It is noteworthy that Chief Justice Roberto Concepcion, who chaired the
Committee on the Judiciary of the Constitutional Commission, was the author of the
opinions of the Court in Lopez v. Roxas and Lansang v. Garcia.
Indeed, the judicial power cannot be extended to matters which do not involve actual
cases or controversies without upsetting the balance of power among the three branches
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 of the government and erecting, as it were, the judiciary, particularly the Supreme Court, as
a third branch of Congress, with power not only to invalidate statutes but even to rewrite
them. Yet that is exactly what we would be permitting in this case were we to assume
jurisdiction and decide wholesale the constitutional validity of the IPRA contrary to the
established rule that a party can question the validity of a statute only if, as applied to him,
it is unconstitutional. Here the IPRA is sought to be declared void on its face.
The only instance where a facial challenge to a statute is allowed is when it operates
in the area of freedom of expression. In such instance, the overbreadth doctrine permits a
party to challenge the validity of a statute even though as applied to him it is not
unconstitutional but it might be if applied to others not before the Court whose activities
are constitutionally protected. Invalidation of the statute "on its face" rather than "as
applied" is permitted in the interest of preventing a "chilling" effect on freedom of
expression. But in other cases, even if it is found that a provision of a statute is
unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far
inseparable from the rest of the statute that a declaration of partial invalidity is not
possible.
For the Court to exercise its power of review when there is no case or controversy is
not only to act without jurisdiction but also to run the risk that, in adjudicating abstract or
hypothetical questions, its decision will be based on speculation rather than experience.
Deprived of the opportunity to observe the impact of the law, the Court is likely to equate
questions of constitutionality with questions of wisdom and is thus likely to intrude into
the domain of legislation. Constitutional adjudication, it cannot be too often repeated,
cannot take place in a vacuum.
Some of the brethren contend that not deciding the constitutional issues raised by
petitioners will be a "galling cop out" 4 or an "advocacy of timidity, let alone isolationism." 5
To decline the exercise of jurisdiction in this case is no more a "cop out" or a sign of
"timidity" than it was for Chief Justice Marshall in Marbury v. Madison 6 to hold that
petitioner had the right to the issuance of his commission as justice of the peace of the
District of Columbia only to declare in the end that after all mandamus did not lie, because
§13 of the Judiciary Act of 1789, which conferred original jurisdiction on the United States
Supreme Court to issue the writ of mandamus, was unconstitutional as the court's
jurisdiction is mainly appellate.
Today Marbury v. Madison is remembered for the institution of the power of judicial
review, and so that there can be no doubt of this power of our Court, we in this country
have enshrined its principle in Art. VIII, §1. Now, the exercise of judicial review can result
either in the invalidation of an act of Congress or in upholding it. Hence, the checking and
legitimating functions of judicial review so well mentioned in the decisions 7 of this Court.
To decline, therefore, the exercise of jurisdiction where there is no genuine
controversy is not to show timidity but respect for the judgment of a coequal department
of government whose acts, unless shown to be clearly repugnant to the fundamental law,
are presumed to be valid. The polestar of constitutional adjudication was set forth by
Justice Laurel in the Angara case when he said that "this power of judicial review is limited
to actual cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis mota,
presented." 8 For the exercise of this power is legitimate only in the last resort, and as a
necessity in the determination of real, earnest, and vital controversy between individuals. 9
Until, therefore, an actual case is brought to test the constitutionality of the IPRA, the
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 presumption of constitutionality, which inheres in every statute, must be accorded to it.
Justice Kapunan, on the other hand, cites the statement in Severino v. Governor
General, 1 0 reiterated in Tañada v. Tuvera , 1 1 that "when the question is one of public right
and the object of mandamus to procure the enforcement of a public duty, the people are
regarded as the real party in interest, and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the result, it being
su cient that he is a citizen and as such is interested in the execution of the laws." On the
basis of this statement, he argues that petitioners have standing to bring these
proceedings. 1 2
I n Severino v. Governor General , 1 3 the question was whether mandamus lay to
compel the Governor General to call a special election on the ground that it was his duty to
do so. The ruling was that he did not have such a duty. On the other hand, although
mandamus was issued in Tañada v. Tuvera , it was clear that petitioners had standing to
bring the suit, because the public has a right to know and the failure of respondents to
publish all decrees and other presidential issuances in the O cial Gazette placed
petitioners in danger of violating those decrees and issuances. But, in this case, what
public right is there for petitioners to enforce when the IPRA does not apply to them
except in general and in common with other citizens?
For the foregoing reasons I vote to dismiss the petition in this case.

PANGANIBAN, J.:

I concur with the draft ponencia of Mr. Justice Santiago M. Kapunan in its well-
crafted handling of the procedural or preliminary Issues. In particular, I agree that
petitioners have shown an actual case or controversy involving at least two constitutional
questions of transcendental importance, 1 which deserve judicious disposition on the
merits directly by the highest court of the land. 2 Further, I am satis ed that the various
aspects of this controversy have been fully presented and impressively argued by the
parties. Moreover, prohibition and mandamus are proper legal remedies 3 to address the
problems raised by petitioners. In any event, this Court has given due course to the
Petition, heard oral arguments and required the submission of memoranda. Indeed, it
would then be a galling copout for us to dismiss it on mere technical or procedural
grounds.
Protection of Indigenous Peoples' Rights Must Be
Within the Constitutional Framework
With due respect, however, I dissent from the ponencia's resolution of the two main
substantive issues, which constitute the core of this case. Speci cally, I submit that
Republic Act (RA) No. 8371, otherwise known as the Indigenous Peoples' Rights Act (IPRA)
of 1997, violates and contravenes the Constitution of the Philippines insofar as —
1. It recognizes or, worse, grants rights of ownership over "lands of the
public domain, waters, . . . and other natural resources" which, under Section 2,
Article XII of the Constitution, "are owned by the State" and "shall not be
alienated." I respectfully reject the contention that "ancestral lands and ancestral
domains are not public lands and have never been owned by the State." Such
sweeping statement places substantial portions of Philippine territory outside the
scope of the Philippine Constitution and beyond the collective reach of the
Filipino people. As will be discussed later, these real properties constitute a third
of the entire Philippine territory; and the resources, 80 percent of the nation's
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 natural wealth.
2. It defeats, dilutes or lessens the authority of the State to oversee the
"exploration, development, and utilization of natural resources," which the
Constitution expressly requires to "be under the full control and supervision of the
State."

True, our fundamental law mandates the protection of the indigenous cultural
communities' right to their ancestral lands, but such mandate is "subject to the provisions
of this Constitution." 4 I concede that indigenous cultural communities and indigenous
peoples (ICCs/IPs) may be accorded preferential rights to the bene cial use of public
domains, as well as priority in the exploration, development and utilization of natural
resources. Such privileges, however, must be subject to the fundamental law.
Consistent with the social justice principle of giving more in law to those who have
less in life, Congress in its wisdom may grant preferences and prerogatives to our
marginalized brothers and sisters, subject to the irreducible caveat that the Constitution
must be respected. I personally believe in according every bene t to the poor, the
oppressed and the disadvantaged, in order to empower them to equally enjoy the
blessings of nationhood. I cannot, however, agree to legitimize perpetual inequality of
access to the nation's wealth or to stamp the Court's imprimatur on a law that offends and
degrades the repository of the very authority of this Court — the constitution of the
Philippines. ESCTaA

The Constitution Is a Compact

My basic premise is that the Constitution is the fundamental law of the land, to
which all other laws must conform. 5 It is the people's quintessential act of sovereignty,
embodying the principles upon which the State and the government are founded. 6 Having
the status of a supreme and all-encompassing law, it speaks for all the people all the time,
not just for the majority or for the minority at intermittent times. Every constitution is a
compact made by and among the citizens of a State to govern themselves in a certain
manner. 7 Truly, the Philippine Constitution is a solemn covenant made by all the Filipinos
to govern themselves. No group, however blessed, and no sector, however distressed, is
exempt from its compass.
RA 8371, which de nes the rights of indigenous cultural communities and
indigenous peoples, admittedly professes a laudable intent. It was primarily enacted
pursuant to the state policy enshrined in our Constitution to "recognize and promote the
rights of indigenous cultural communities within the framework of national unity and
development." 8 Though laudable and well-meaning, this statute, however, has provisions
that run directly afoul of our fundamental law from which it claims origin and authority.
More speci cally, Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and other related provisions
contravene the Regalian Doctrine — the basic foundation of the State's property regime.
Public Domains and Natural Resources Are Owned
by the State and Cannot Be Alienated or Ceded
Jura regalia was introduced into our political system upon the "discovery" and the
"conquest" of our country in the sixteenth century. Under this concept, the entire earthly
territory known as the Philippine Islands was acquired and held by the Crown of Spain. The
King, as then head of State, had the supreme power or exclusive dominion over all our
lands, waters, minerals and other natural resources. By royal decrees, though, private
ownership of real property was recognized upon the showing of (1) a title deed; or (2)
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 ancient possession in the concept of owner, according to which a title could be obtained
by prescription. 9 Refusal to abide by the system and its implementing laws meant the
abandonment or waiver of ownership claims.
By virtue of the 1898 Treaty of Paris, the Philippine archipelago was ceded to the
United States. The latter assumed administration of the Philippines and succeeded to the
property rights of the Spanish Crown. But under the Philippine Bill of 1902, the US
Government allowed and granted patents to Filipino and US citizens for the "free and open
. . . exploration, occupation and purchase [of mines] and the land in which they are found."
1 0 To a certain extent, private individuals were entitled to own, exploit and dispose of
mineral resources and other rights arising from mining patents.
This US policy was, however, rejected by the Philippine Commonwealth in 1935
when it crafted and rati ed our rst Constitution. Instead, the said Constitution embodied
the Regalian Doctrine, which more de nitively declared as belonging to the State all lands
of the public domain, waters, minerals and other natural resources. 1 1 Although respecting
mining patentees under the Philippine Bill of 1902, it restricted the further exploration,
development and utilization of natural resources, both as to who might be entitled to
undertake such activities and for how long. The pertinent provision reads:
"SECTION 1 [Art. XIII]. 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 license,
concession, or lease for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding twenty- ve years,
renewable for another twenty- ve years, except as to water rights for irrigation,
water supply, sheries, or industrial uses other than the development of water
power, in which cases bene cial use may be the measure and the limit of the
grant."

The concept was carried over in the 1973 and the 1987 Constitutions. Hence,
Sections 8 and 9, Article XIV of the 1973 Constitution, state:
"SEC. 8. All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, sheries, 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,
utilization of any of the natural resources shall be granted for a period exceeding
twenty- ve years, renewable for not more than twenty- ve years, except as to
water rights for irrigation, water supply, sheries, or industrial uses other than the
development of water power, in which cases bene cial use may be the measure
and the limit of the grant.
SEC. 9. The disposition, exploration, development, exploitation, or
utilization of any of the natural resources of the Philippines shall be limited to
citizens of the Philippines, or to corporations or associations at least sixty per
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 centum of the capital of which is owned by such citizens. The National Assembly,
in the national interest, may allow such citizens, corporations, or associations to
enter into service contracts for nancial, technical, management, or other forms
of assistance with any foreign person or entity for the exploration, development,
exploitation, or utilization of any of the natural resources. Existing valid and
binding service contracts for nancial, technical, management, or other forms of
assistance are hereby recognized as such."

Similarly, Section 2, Article XII of the 1987 Constitution, provides:

"SEC. 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, sheries, forests
or timber, wildlife, ora 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 citizen, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens.
Such agreements may be for a period not exceeding twenty- ve years, renewable
for not more than twenty- ve years, and under such terms and conditions as may
be provided by law. In cases of water rights for irrigation, water supply, sheries,
or industrial uses other than the development of water power, bene cial use may
be the measure and limit of the grant.
"The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
"The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative sh farming, with priority to
subsistence fishermen and fish workers in rivers, lakes, bays and lagoons.
"The President may enter into agreements with foreign-owned corporations
involving either technical or nancial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scienti c
and technical resources.
"The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution."

The adoption of the Regalian Doctrine by the Philippine Commonwealth was initially
impelled by the desire to preserve the nation's wealth in the hands of the Filipinos
themselves. Nationalism was fervent at the time, and our constitutional framers decided to
embody the doctrine in our fundamental law. Charging the State with the conservation of
the national patrimony was deemed necessary for Filipino posterity. The arguments in
support of the provision are encapsulated by Aruego as follows: "[T]he natural resources,
particularly the mineral resources which constituted a great source of wealth, belonged
not only to the generation then but also to the succeeding generation and consequently
should be conserved for them." 1 2
Thus, after expressly declaring that all lands of the public domain, waters, minerals,
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 all forces of energy and other natural resources belonged to the Philippine State, the
Commonwealth absolutely prohibited the alienation of these natural resources. Their
disposition, exploitation, development and utilization were further restricted only to Filipino
citizens and entities that were 60 percent Filipino-owned. The present Constitution even
goes further by declaring that such activities "shall be under the full control and
supervision of the State." Additionally, it enumerates land classi cations and expressly
states that only agricultural lands of the public domain shall be alienable. We quote below
the relevant provision: 1 3
"SEC. 3. Lands of the public domain are classi ed into agricultural,
forest or timber, mineral lands, and national parks. Agricultural lands of the public
domain may be further classi ed by law according to the uses to which they may
be devoted. Alienable lands of the public domain shall be limited to agricultural
lands. Private corporations or associations may not hold such alienable lands of
the public domain except by lease, for a period not exceeding twenty- ve years,
renewable for not more than twenty- ve years, and not to exceed one thousand
hectares in area. . . . ."

Mr. Justice Kapunan upholds private respondents and intervenors in their claim that
all ancestral domains and lands are outside the coverage of public domain; and that these
properties — including forests, bodies of water, minerals and parks found therein — are
private and have never been part of the public domain, because they have belonged to the
indigenous people's ancestors since time immemorial.
I submit, however, that all Filipinos, whether indigenous or not, are subject to the
Constitution. Indeed, no one is exempt from its all-encompassing provisions. Unlike the
1935 Charter, which was subject to "any existing right, grant, lease or concession," the
1973 and the 1987 Constitutions spoke in absolute terms. Because of the State's
implementation of policies considered to be for the common good, all those concerned
have to give up, under certain conditions, even vested rights of ownership.
In Republic v. Court of Appeals , 1 4 this Court said that once minerals are found even
in private land, the State may intervene to enable it to extract the minerals in the exercise of
its sovereign prerogative. The land is converted into mineral land and may not be used by
any private person, including the registered owner, for any other purpose that would
impede the mining operations. Such owner would be entitled to just compensation for the
loss sustained.
In Atok Big-Wedge Mining Company v. IAC , 1 5 the Court clari ed that while mining
claim holders and patentees have the exclusive right to the possession and enjoyment of
the located claim, their rights are not absolute or strictly one of ownership. Thus, failure to
comply with the requirements of pertinent mining laws was deemed an abandonment or a
waiver of the claim.
Verily, as petitioners undauntedly point out, four hundred years of Philippine political
history cannot be set aside or ignored by IPRA, however well-intentioned it may be. The
perceived lack of understanding of the cultural minorities cannot be remedied by
conceding the nation's resources to their exclusive advantage. They cannot be more
privileged simply because they have chosen to ignore state laws. For having chosen not to
be enfolded by statutes on perfecting land titles, ICCs/IPs cannot now maintain their
ownership of lands and domains by insisting on their concept of "native title" thereto. It
would be plain injustice to the majority of Filipinos who have abided by the law and,
consequently, deserve equal opportunity to enjoy the country's resources.
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 Respondent NCIP claims that IPRA does not violate the Constitution, because it
does not grant ownership of public domains and natural resources to ICCs/IPs. "Rather, it
recognizes and mandates respect for the rights of indigenous peoples over their ancestral
lands and domains that had never been lands of the public domain." 1 6 I say, however, that
such claim nds no legal support. Nowhere in the Constitution is there a provision that
exempts such lands and domains from its coverage. Quite the contrary, it declares that all
lands of the public domain and natural resources "are owned by the State"; and "with the
exception of agricultural lands, all other natural resources shall not be alienated."
As early as Oh Cho v. Director of Lands , 1 7 the Court declared as belonging to the
public domain all lands not acquired from the government, either by purchase or by grant
under laws, orders or decrees promulgated by the Spanish government; or by possessory
information under Act 496 (Mortgage Law).
On the other hand, Intervenors Flavier et al. 1 8 differentiate the concept of ownership
of ICCs/IPs from that which is de ned in Articles 427 and 428 of the Civil Code. They
maintain that "[t]here are variations among ethnolinguistic groups in the Cordillera, but a
fair synthesis of these refers to '. . . the tribal right to use the land or to territorial control . .
., a collective right to freely use the particular territory . . . [in] the concept of trusteeship.'"
In other words, the "owner" is not an individual. Rather, it is a tribal community that
preserves the property for the common but nonetheless exclusive and perpetual bene t of
its members, without the attributes of alienation or disposition. This concept, however, still
perpetually withdraws such property from the control of the State and from its enjoyment
by other citizens of the Republic. The perpetual and exclusive character of private
respondents' claims simply makes them repugnant to basic fairness and equality.
Private respondents and intervenors trace their "ownership" of ancestral domains
and lands to the pre-Spanish conquest. I should say that, at the time, their claims to such
lands and domains was limited to the surfaces thereof since their ancestors were
agriculture-based. This must be the continuing scope of the indigenous groups' ownership
claims: limited to land, excluding the natural resources found within.
In any event, if all that the ICCs/IPs demand is preferential use — not ownership — of
ancestral domains, then I have no disagreement. Indeed, consistent with the Constitution
is IPRA's Section 57 1 9 — without the too-broad de nitions under Section 3 (a) and (b) —
insofar as it grants them priority rights in harvesting, extracting, developing or exploiting
natural resources within ancestral domains.
The concerted effort to malign the Regalian Doctrine as a vestige of the colonial
past must fail. Our Constitution vests the ownership of natural resources, not in colonial
masters, but in all the Filipino people. As the protector of the Constitution, this Court has
the sworn duty to uphold the tenets of that Constitution — not to dilute, circumvent or
create exceptions to them.
Cariño v. Insular Government Was Modi ed by the
Constitution
In this connection, I submit that Cariño v. Insular Government 2 0 has been modi ed
or superseded by our 1935, 1973 and 1987 Constitutions. Its ratio should be understood
as referring only to a means by which public agricultural land may be acquired by citizens. I
must also stress that the claim of Petitioner Cariño refers to land ownership only, not to
the natural resources underneath or to the aerial and cosmic space above.
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 Signi cantly, in Director of Land Management v. Court of Appeals , 2 1 a Decision
handed down after our three Constitutions had taken effect, the Court rejected a cultural
minority member's registration of land under CA 141, Section 48 (c). 2 2 The reason was
that the property fell within the Central Cordillera Forest Reserve. This Court quoted with
favor the solicitor general's following statements:
"3. The construction given by respondent Court of Appeals to the particular provision
of law involved, as to include even forest reserves as susceptible to private appropriation, is to
unconstitutionally apply such provision. For, both the 1973 and present Constitutions do not
include timber or forest lands as alienable. Thus, Section 8, Article XIV of 1973 Constitution
states that 'with the exception of agricultural, industrial or commercial, residential and
resettlement lands of the public domain, natural resources shall not be alienated.' The new
Constitution, in its Article XII, Section 2, also expressly states that 'with the exception of
agricultural lands, all other natural resources shall not be alienated.'"

Just recently, in Gordula v. Court of Appeals , 2 3 the Court also stated that "forest
land is incapable of registration, and its inclusion in a title nulli es that title. To be sure, the
defense of indefeasibility of a certi cate of title issued pursuant to a free patent does not
lie against the state in an action for reversion of the land covered thereby when such land
is a part of a public forest or of a forest reservation, the patent covering forest land being
void ab initio."
RA 8371 Violates the Inalienability of Natural
Resources and of Public Domains
The ponencia theorizes that RA 8371 does not grant to ICCs/IPs ownership of the
natural resources found within ancestral domains. However, a simple reading of the very
wording of the law belies this statement.
Section 3 (a) 2 4 de nes and delineates ancestral domains as "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 . . . . It shall include ancestral lands, forests, pasture, residential, agricultural,
and other lands individually owned whether alienable and disposable or otherwise, hunting
grounds . . . bodies of water, mineral and other natural resources . . . ." (Italics ours.)
Clearly, under the above-quoted provision of IPRA, ancestral domains of ICCs/IPs
encompass the natural resources found therein. And Section 7 guarantees recognition and
protection of their rights of ownership and possession over such domains.
The indigenous concept of ownership, as de ned under Section 5 of the law, "holds
that ancestral domains are the ICC's/IP's private but community property which belongs to
all generations and therefore cannot be sold, disposed or destroyed." Simply put, the law
declares that ancestral domains, including the natural resources found therein, are owned
by ICCs/IPs and cannot be sold, disposed or destroyed. Not only does it vest ownership,
as understood under the Civil Code; it adds perpetual exclusivity. This means that while
ICCs/IPs could own vast ancestral domains, the majority of Filipinos who are not
indigenous can never own any part thereof. DaACIH

On the other hand, Section 3 (b) 2 5 of IPRA de nes ancestral lands as referring to
"lands occupied, possessed and utilized by individuals, families and clans of the ICCs/IPs
since time immemorial . . ., under claims of individual or traditional group ownership, . . .
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 including, but not limited to, residential lots, rice terraces or paddies, private forests,
swidden farms and tree lots." Section 8 recognizes and protects "the right of ownership
and possession of ICCs/IPs to their ancestral lands." Such ownership need not be by virtue
of a certificate of title, but simply by possession since time immemorial.
I believe these statutory provisions directly contravene Section 2, Article XII of the
Constitution, more speci cally the declaration that the State owns all lands of the public
domain, minerals and natural resources — none of which, except agricultural lands, can be
alienated. In several cases, this Court has consistently held that non-agricultural land must
rst be reclassi ed and converted into alienable or disposable land for agricultural
purposes by a positive act of the government. 2 6 Mere possession or utilization thereof,
however long, does not automatically convert them into private properties. 2 7 The
presumption is that "all lands not appearing to be clearly within private ownership are
presumed to belong to the State. Hence, . . . all applicants in land registration proceedings
have the burden of overcoming the presumption that the land thus sought to be registered
forms part of the public domain. Unless the applicant succeeds in showing by clear and
convincing evidence that the property involved was acquired by him or his ancestors either
by composition title from the Spanish Government or by possessory information title, or
any other means for the proper acquisition of public lands, the property must be held to be
part of the public domain. The applicant must present competent and persuasive proof to
substantiate his claim; he may not rely on general statements, or mere conclusions of law
other than factual evidence of possession and title." 2 8
Respondents insist, and the ponencia agrees, that paragraphs (a) and (b) of
Sections 3 are merely de nitions and should not be construed independently of the other
provisions of the law. But, precisely, a de nition is "a statement of the meaning of a word
or word group." 2 9 It determines or settles the nature of the thing or person de ned. 3 0
Thus, after de ning a term as encompassing several items, one cannot thereafter say that
the same term should be interpreted as excluding one or more of the enumerated items in
its de nition. For that would be misleading the people who would be bound by the law. In
other words, since RA 8371 de nes ancestral domains as including the natural resources
found therein and further states that ICCs/IPs own these ancestral domains, then it means
that ICCs/IPs can own natural resources.
In fact, Intervenors Flavier et al. submit that everything above and below these
ancestral domains, with no speci c limits, likewise belongs to ICCs/IPs. I say that this
theory directly contravenes the Constitution. Such outlandish contention further disregards
international law which, by constitutional at, has been adopted as part of the law of the
land. 3 1
No Land Area Limits Are Specified by RA 8371
Under Section 3, Article XII of the Constitution, Filipino citizens may acquire no more
than 12 hectares of alienable public land, whether by purchase, homestead or grant. More
than that, but not exceeding 500 hectares, they may hold by lease only.
RA 8371, however, speaks of no area or term limits to ancestral lands and domains .
In fact, by their mere de nitions, they could cover vast tracts of the nation's territory. The
properties under the assailed law cover everything held, occupied or possessed "by
themselves or through their ancestors, communally or individually since time immemorial."
It also includes all "lands which may no longer be exclusively occupied by [them] 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."
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 Nomadic groups have no xed area within which they hunt or forage for food. As
soon as they have used up the resources of a certain area, they move to another place or
go back to one they used to occupy. From year to year, a growing tribe could occupy and
use enormous areas, to which they could claim to have had "traditional access." If nomadic
ICCs/IPs succeed in acquiring title to their enlarging ancestral domain or land, several
thousands of hectares of land may yet be additionally delineated as their private property.
Similarly, the Bangsa Moro people's claim to their ancestral land is not based on
compounded or consolidated title, but "on a collective stake to the right to claim what their
forefathers secured for them when they rst set foot on our country." 3 2 They trace their
right to occupy what they deem to be their ancestral land way back to their ancient sultans
and datus, who had settled in many islands that have become part of Mindanao. This long
history of occupation is the basis of their claim to their ancestral lands. 3 3
Already, as of June 1998, over 2.5 million hectares have been claimed by various
ICCs/IPs as ancestral domains; and over 10 thousand hectares, as ancestral lands. 3 4
Based on ethnographic surveys, the solicitor general estimates that ancestral domains
cover 80 percent of our mineral resources and between 8 and 10 million of the 30 million
hectares of land in the country. 3 5 This means that four fths of its natural resources and
one third of the country's land will be concentrated among 12 million Filipinos constituting
110 ICCs, 3 6 while over 60 million other Filipinos constituting the overwhelming majority
will have to share the remaining. These gures indicate a violation of the constitutional
principle of a "more equitable distribution of opportunities, income, and wealth" among
Filipinos.
RA 8371 Abdicates the State Duty to Take Full
Control and Supervision of Natural Resources
Section 2, Article XII of the Constitution, further provides that "[t]he exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State." The State may (1) directly undertake such activities; or (2) enter
into co-production, joint venture or production-sharing agreements with Filipino citizens or
entities, 60 percent of whose capital is owned by Filipinos. 3 7 Such agreements, however,
shall not exceed 25 years, renewable for the same period and under terms and conditions
as may be provided by law.
But again, RA 8371 relinquishes this constitutional power of full control in favor of
ICCs/IPs, insofar as natural resources found within their territories are concerned.
Pursuant to their rights of ownership and possession, they may develop and manage the
natural resources, bene t from and share in the pro ts from the allocation and the
utilization thereof. 3 8 And they may exercise such right without any time limit, unlike non-
ICCs/IPs who may do so only for a period not exceeding 25 years, renewable for a like
period. 3 9 Consistent with the Constitution, the rights of ICCs/IPs to exploit, develop and
utilize natural resources must also be limited to such period.
In addition, ICCs/IPs are given the right to negotiate directly the terms and
conditions for the exploration of natural resources, 4 0 a right vested by the Constitution
only in the State. Congress, through IPRA, has in effect abdicated in favor of a minority
group the State's power of ownership and full control over a substantial part of the
national patrimony, in contravention of our most fundamental law.
I make clear, however, that to the extent that ICCs/IPs may undertake small-scale
utilization of natural resources and cooperative sh farming, I absolutely have no
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 objection. These undertakings are certainly allowed under the third paragraph of Section 2,
Article XII of the Constitution.
Having already disposed of the two major constitutional dilemmas wrought by RA
8371 — (1) ownership of ancestral lands and domains and the natural resources therein;
and (2) the ICCs/IPs' control of the exploration, development and utilization of such
resources — I believe I should no longer tackle the following collateral issues petitioners
have brought up:
1. Whether the inclusion of private lands within the coverage of ancestral
domains amounts to undue deprivation of private property
2. Whether ICCs/IPs may regulate the entry/exit of migrants
3. Whether ancestral domains are exempt from real property taxes, special
levies and other forms of exaction
4. Whether customary laws and traditions of ICCs/IPs should rst be applied
in the settlements of disputes over their rights and claims
5. Whether the composition and the jurisdiction of the National Commission
of Indigenous Peoples (NCIP) violate the due process and equal protection
clauses
6. Whether members of the ICCs/IPs may be recruited into the armed forces
against their will

I believe that the rst three of the above collateral issues have been rendered
academic or, at least, no longer of "transcendental importance," in view of my contention
that the two major IPRA propositions are based on unconstitutional premises. On the
other hand, I think that in the case of the last three, it is best to await speci c cases led
by those whose rights may have been injured by specific provisions of RA 8371.
Epilogue
Section 5, Article XII of the Constitution, provides:
"SEC. 5. 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 domain."

Clearly, there are two parameters that must be observed in the protection of the
rights of ICCs/IPs: (1) the provisions of the 1987 Constitution and (2) national
development policies and programs.
Indigenous peoples may have long been marginalized in Philippine politics and
society. This does not, however, give Congress any license to accord them rights that the
Constitution withholds from the rest of the Filipino people. I would concede giving them
priority in the use, the enjoyment and the preservation of their ancestral lands and
domains. 4 1 But to grant perpetual ownership and control of the nation's substantial
wealth to them, to the exclusion of other Filipino citizens who have chosen to live and abide
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 by our previous and present Constitutions, would be not only unjust but also subversive of
the rule of law.
In giving ICCs/IPs rights in derogation of our fundamental law, Congress is
effectively mandating "reverse discrimination." In seeking to improve their lot, it would be
doing so at the expense of the majority of the Filipino people. Such short-sighted and
misplaced generosity will spread the roots of discontent and, in the long term, fan the res
of turmoil to a conflagration of national proportions.
Peace cannot be attained by brazenly and permanently depriving the many in order
to coddle the few, however disadvantaged they may have been. Neither can a just society
be approximated by maiming the healthy to place them at par with the injured. Nor can the
nation survive by enclaving its wealth for the exclusive benefit of favored minorities.
Rather, the law must help the powerless by enabling them to take advantage of
opportunities and privileges that are open to all and by preventing the powerful from
exploiting and oppressing them. This is the essence of social justice — empowering and
enabling the poor to be able to compete with the rich and, thus, equally enjoy the blessings
of prosperity, freedom and dignity.
WHEREFORE, I vote to partially GRANT the Petition and to DECLARE as
UNCONSTITUTIONAL Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and related provisions of
RA 8371.

Footnotes
1. Rollo, p. 114.
2. Petition, Rollo, pp. 16-23.
3. Id. at 23-25.
4. Section 1, Article III of the Constitution states: "No person shall be deprived of life, liberty
or property without due process of law, nor shall any person be denied the equal
protection of the laws."
5. Rollo, pp. 25-27.
6. Id. at 27-28.
7. Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.
PUNO, J.:
1. Chief Judge, US Court of Appeals for the Seventh Circuit; Senior Lecturer, University of
Chicago Law School.
2. The University of Chicago Law Review, Vol. 67, Summer 2000, No. 3, p. 573.
3. Dominium is distinguished from imperium which is the government authority possessed
by the state expressed in the concept of sovereignty — Lee Hong Hok v. David, 48 SCRA
372, 377 [1972].

4. Valenton v. Murciano, 3 Phil. 537, 543 [1904]; See also Florencio D.R. Ponce, The
Philippine Torrens System, p. 13 [1964].
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 5. Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986]; These grants were better known
a s repartimientos and encomiendas. Repartimientos were handouts to the military as
tting reward for their services to the Spanish crown. The encomiendas were given to
Spaniards to administer and develop with the right to receive and enjoy for themselves
the tributes of the natives assigned to them. — Ponce, supra, p. 12, citing Benitez, History
of the Philippines, pp. 125-126.
6. Narciso Pena, Registration of Land Titles and Deeds, p. 2 [1994].
7. The Mortgage Law is a misnomer because it is primarily a law on registration of property
and secondarily a mortgage law — Ponce, supra, at 16.
8. Ponce, supra, at 15.
9. 3 Phil. 537 [1904].

10. Id. at 540.

11. Id. at 548.
12. Id. at 543-544.
13. Id. at 543.
14. Id. at 542-543. These comments by the court are clear expressions of the concept that
Crown holdings embraced both imperium and dominium — Ma. Lourdes Aranal-Sereno
and Roan Libarios, The Interface Between National Land Law and Kalinga Land Law, 58
P.L.J. 420, 423 [1983].
15. Id. at 545-546.
16. Id. at 543.
17. Id. at 557.
18. Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6 Phil. 320 [1906]; Tiglao v.
Insular Government, 7 Phil. 80 [1906]; and Cariño v. Insular Government, 7 Phil. 132
[1906]; all decided by the Philippine Supreme Court.
19. Please see Section 70, Act 926.
20. Ponce, supra, at 33.
21. Montano v. Insular Government, 12 Phil. 572 [1909]; also cited in Ponce, supra, at 32.
22. Archbishop of Manila v. Director of Lands, 27 Phil. 245 [1914]; also cited in Ponce,
supra, at 32.
23. Antonio H. Noblejas, Land Titles and Deeds, p. 250 [1961].
24. Ponce, supra, at 32.
25. Peña, Registration of Land Titles and Deeds, p. 26 [1982]; Noblejas, supra, at 32.
26. Noblejas, supra, at 32.
27. Ponce, supra, at 123-124; Noblejas, supra, at 33.
28. 2 Aruego, The Framing of the Philippine Constitution, p. 592 [1937].
29. Id. at 600.
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 30. Id. at 600-601.
31. Ibid.
32. Section 7.
33. Section 8.
34. Sections 13 to 20.
35. Sections 21 to 28.

36. Sections 29 to 37.

37. Sections 38 and 40.
38. Sections 74 to 77.
39. Section 69.
40. Section 73.
41. Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June
27, 1989.
42. Guide to RA. 8371, published by the Coalition for IPs Rights and Ancestral Domains in
cooperation with the ILO and Bilance-Asia Department, p. 4 [1999] — hereinafter referred
to as Guide to R.A. 8371.
43. Taken from the list of IPs submitted by Rep. Andolana to the House of Representatives
during the deliberations on H.B. No. 9125 — Interpellations of Aug. 20, 1997, pp. 00086-
00095. "Lost tribes" such as the Lutangan and Tatang have not been included.
44. How these people came to the Philippines may be explained by two theories. One view,
generally linked to Professor Otley H. Beyer, suggests the "wave theory" — a series of
arrivals in the archipelago bringing in different types and levels of culture. The Negritos,
dark-skinned pygmies, came between 25,000 to 30,000 B.C. Their cultural remains are
preserved by the Negrito-type Filipinos found in Luzon, Visayas and Mindanao. Their
relatively inferior culture did not enable them to overcome the pressures from the second
wave of people, the Indonesians A and B who came in 5,000 and 3,500 B.C. They are
represented today by the Kalinga, Gaddang, Isneg, Mangyan, Tagbanua, Manobo,
Mandaya, Subanon, and Sama. The rst group was pushed inland as the second
occupied the coastal and downriver settlements. The last wave involved Malay
migrations between 500 B.C. and 1,500 A.D. They had a more advanced culture based
on metal age technology. They are represented by the Christianized and Islamized
Filipinos who pushed the Indonesian groups inland and occupied much of the coastal,
lowland and downstream areas.
A second view is postulated by Robert Fox, F. Landa Jocano, Alfredo
Evangelista, and Jesus Peralta. Jocano maintains that the Negritos, Indonesians and
Malays stand co-equal as ethnic groups without any one being dominant, racially or
culturally. The geographic distribution of the ethno-linguistic groups, which shows
overlapping of otherwise similar racial strains in both upland and lowland cultures or
coastal and inland communities, suggests a random and unstructured advent of
different kinds of groups in the archipelago — Samuel K. Tan, A History of the
Philippines, published by the Manila Studies Association, Inc. and the Philippine
National Historical Society, Inc., pp. 33-34 [1997]; Teodoro A. Agoncillo, History of the
Filipino People, p. 21 [1990].
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 45. Tan, supra, at 35-36.
46. Onofre D. Corpuz, The Roots of the Filipino Nation, Philippine Centennial (1898-1998)
Edition, vol. 1, p. 13, Aklahi Foundation, Inc. [1989]. It was in 800-1,000 A.D. that the
Ifugaos of Northern Luzon built the rice terraces — Id. at 37.
47. Id. at 5-6.
48. Id. at 13.
49. Teodoro A. Agoncillo, History of the Filipino People, p. 54 [1990].
50. Corpuz, supra, at 5.
51. Id. at 44-45.
52. Agoncillo, supra, at 40.
53. Id. at 40-41.
54. Rafael Iriarte, History of the Judicial System, the Philippine Indigenous Era Prior to
1565, unpublished work submitted as entry to the Centennial Essay-Writing Contest
sponsored by the National Centennial Commission and the Supreme Court in 1997, p.
103, citing Perfecto V. Fernandez, Custom Laws in Pre-Conquest Philippines, UP Law
Center, p. 10 [1976].

55. Agoncillo, supra, at 41.

56. Amelia Alonzo, The History of the Judicial System in the Philippines, Indigenous Era
Prior to 1565, unpublished work submitted as entry to the Centennial Essay-Writing
Contest sponsored by the National Centennial Commission and the Supreme Court in
1997.
57. Agoncillo, supra, at 42.
58. Renato Constantino, A Past Revisited, p. 38 [1975].
59. Samuel K. Tan, A History of the Philippines, published by the Manila Studies Ass'n., Inc.
and the Phil. National Historical Society, Inc., p. 43 [1997].
60. Id.
61. Id. at 43-44.
62. Tan, supra, at 47-48.
63. Id. at 48-49.
64. Cacho v. Government of the P.I., 28 Phil. 616, 625-627 [1914]; see also Ponce, The
Philippine Torrens System , pp. 11-12 [1964]. In Philippine pre-colonial history, there was
only one recorded transaction on the purchase of land. The Maragtas Code tells us of
the purchase of Panay Island by ten Bornean datus led by Datu Puti from the Atis under
Marikudo in the 13th century. The purchase price for the Island was a gold salakot and a
long gold necklace — Agoncillo, supra, at 25.
65. Constantino, supra, at 38.
66. Corpuz, supra, at 39.
67. Resettlement — "bajo el son de la campana" (under the sound of the bell) or "bajo el
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 toque de la campana" (under the peal of the bell).
68. People v. Cayat, 68 Phil. 12, 17 [1939].
69. Id. at 17, citing the Decree of the Governor-General of the Philippines, Jan. 14, 1887.
70. Agoncillo, supra, at 80.
71. Id. at 80.
72. Corpuz, supra, at 277-278.
73. Id. at 277.
74. Id. ; N.B. But see discussion in Cariño v. Insular Government, infra, where the United
States Supreme Court found that the Spanish decrees in the Philippines appeared to
recognize that the natives owned some land. Whether in the implementation of these
decrees the natives' ancestral rights to land were actually respected was not discussed
by the U.S. Supreme Court; see also Note 131, infra.
75. Tan, supra, at 49-50.
76. Id. at 67.
77. Id. at 52-53.
78. Id. at 53.
79. Id. at 55.
80. People v. Cayat, 68 Phil. 12, 17 [1939].
81. Memorandum of the Secretary of the Interior, quoted in Rubi v. Provincial Board of
Mindoro, 39 Phil. 660, 714 [1919]; also cited in People v. Cayat, supra, at 17-18.
82. Rubi v. Provincial Board of Mindoro, supra, at 693.
83. Charles MacDonald, Indigenous Peoples of the Philippines: Between Segregation and
Integration, Indigenous Peoples of Asia, p. 348, ed. by R.H. Barnes, A. Gray and B.
Kingsbury, pub. by Association for Asian Studies [1995]. The BNCT made a Bontok and
Subanon ethnography, a history of Sulu genealogy, and a compilation on unhispanized
peoples in northern Luzon. — Owen J. Lynch, Jr., The Philippine Colonial Dichotomy:
Attraction and Disenfranchisement, 63 P.L.J. 139-140 [1988].
84. R.A. No. 1888 of 1957.
85. See People v. Cayat, supra, at 21; See also Rubi v. Provincial Board of Mindoro, 39 Phil.
660, 694 [1919].
86. MacDonald, Indigenous Peoples of the Philippines, supra, at 351.
87. The construction of the Ambuklao and Binga dams in the 1950's resulted in the eviction
of hundreds of Ibaloi families — Cerilo Rico S. Abelardo, Ancestral Domain Rights:
Issues, Responses, and Recommendations, Ateneo Law Journal, Vol. 38, No. 1, p. 92
[1993].

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

89. Presidential Decrees Nos. 1017 and 1414.
90. The PANAMIN, however, concentrated funds and resources on image-building, publicity,
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 and impact projects. In Mindanao, the agency resorted to a policy of forced resettlement
on reservations, militarization and intimidation — MacDonald, Indigenous Peoples of the
Philippines, supra, at 349-350.
91. No occupancy certi cates were issued, however, because the government failed to
release the decree's implementing rules and regulations — Abelardo, supra, at 120-121.
92. Id., Note 177.
93. Id., at 93-94.
94. MacDonald, Indigenous Peoples of the Philippines, supra, at 351.

95. E.O. Nos. 122-A, 122-B and 122-C. The preamble of E.O. No. 122-B states: "Believing
that the new government is committed to formulate more vigorous policies, plans,
programs, and projects for tribal Filipinos, otherwise known as Indigenous Cultural
Communities, taking into consideration their communal aspirations, customs, traditions,
beliefs, and interests, in order to promote and preserve their rich cultural heritage and
insure their participation in the country's development for national unity; . . ."
96. Article II, Sec. 22; Article VI, Sec. 5, par. 2; Article XII, Sec. 5; Article XIII, Sec. 6; Article XIV,
Sec. 17; and Article XVI, Sec. 12.

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

98. Samuel K. Tan, A History of the Philippines, p. 54 [1997].
99. Cordillera Studies Program, Land Use and Ownership and Public Policy in the Cordillera,
29-30 [n.d.]; also cited in Dante B. Gatmaytan, Ancestral Domain Recognition in the
Philippines: Trends in Jurisprudence and Legislation , 5 Phil. Nat. Res. L.J. No. 1, pp. 47-
48 [1992].
100. Abelardo, Ancestral Domain Rights, supra, at 98-99, citing Ponciano L. Bennagen,
Indigenous Attitudes Toward Land and Natural Resources of Tribal Filipinos, 31 National
Council of Churches in the Philippines Newsletter, Oct.-Dec. 1991, at 4-9.
101. Id. at 99, citing June Prill-Brett, Bontok Land Tenure (UP Law library, mimeographed).
102. Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface of National Land Law
and Kalinga Law, 58 P.L.J. 420, 440-441 [1983].
103. Ibid.
104. Ibid.
105. Ibid.
106. Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface, supra, at 420.
107. Senate Bill No. 1728 was co-sponsored by Senator Macapagal-Arroyo and co-
authored by Senators Alvarez, Magsaysay, Revilla, Mercado, Enrile, Honasan, Tatad,
Maceda, Shahani, Osmeña and Romulo.
The Eighth Congress, through Senators Rasul, Estrada and Romulo led a bill to
operationalize the mandate of the 1987 Constitution on indigenous peoples. The bill was
reported out, sponsored and interpellated but never enacted into law. In the Ninth
Congress, the bill led by Senators Rasul and Macapagal-Arroyo was never sponsored
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 and deliberated upon in the floor.
108. Sponsorship Speech of Senator Flavier, Legislative History of SBN 1728, Tenth
Congress, Second Regular Session, Senate, Oct. 16, 1996, pp. 15-16.
109. Id. at 12.
110. Id. at 17-18.
111. Id. at 13.
112. Journal of the Tenth Congress of the Philippines, Senate, Session No. 5, Aug. 5-6,
1997, pp. 86-87.
113. Co-authors of the bill were Reps. Ermita, Teves, Plaza, Calalay, Recto, Fua, Luciano,
Abad, Cosalan, Aumentado, de la Cruz, Bautista, Singson, Damasing, Romualdo,
Montilla, Germino, Verceles — Proceedings of Sept. 4, 1997, pp. 00107-00108.
114. Sponsorship speech of Rep. Andolana of House Bill No. 9125, March 20, 1997.
115. Interpellation of Aug. 20, 1997, 6:16 p.m., p. 00061.
116. Section 3 [a], IPRA.
117. Section 3 [b], IPRA.
118. Guide to R.A. 8371, p. 14.
119. Section 44 [e], IPRA.
120. Section 51, IPRA.
121. Guide to R.A. 8371, p. 15.
122. A CADT refers to a title formally recognizing the right of possession and ownership of
ICCs/IPs over their ancestral domains identi ed and delineated in accordance with the
IPRA — Rule II [c], Rules & Regulations Implementing the IPRA, NCIP Admin. Order No. 1.
123. Section 53 [a], IPRA.
124. A CALT refers to a title formally recognizing the rights of the ICCs/IPs over their
ancestral lands — Rule II [d], Implementing Rules, NCIP A.O. No. 1.
125. Section 52 [k], IPRA.
126. Section 3 [1], IPRA.
127. Section 11, IPRA.
128. Ibid.
129. 41 Phil. 935 (1909), 212 U.S. 449, 53 L. Ed. 594.
130. Sponsorship Speech of Senator Juan Flavier, Leg. History of SBN 1728, Tenth
Congress, Second Regular Session, Oct. 16, 1996, p. 13.
131. It was the practice of the Spanish colonial government not to issue titles to Igorots —
Owen J. Lynch, Jr., Invisible Peoples and a Hidden Agenda: The Origins of Contemporary
Philippine Land Laws (1900-1913), 63 P.L.J. 249, 288 [1988], citing the testimony of
Benguet Provincial Governor William F. Pack, Records at 47, Cariño.

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 132. Maura Law or the Royal Decree of Feb. 13, 1894.
133. Later named Camp John Hay.
134. Lynch, Invisible Peoples, supra, at 288-289.
135. 7 Phil. 132 [1906].
136. In 1901, Cariño had entered into a promissory agreement with a U.S. merchant in
Manila. The note obliged Cariño to sell the land at issue "as soon as he obtains from the
Government of the United States, or its representatives in the Philippines, real and
definitive title." See Lynch, Invisible Peoples, supra, at 290, citing Government's Exhibit G,
Records, at 137-138, Cariño.
137. Cariño v. Insular Government, supra, at 939.
138. Ibid.
139. Id. at 940.
140. Id. at 941.
141. Id. at 941-942.
142. Aranal-Sereno and Libarios, The Interface Between Kalinga Land Law, supra at 428 —
This article was one of those circulated among the Constitutional Commissioners in the
formulation of Sec. 5, Article XII of the 1987 Constitution (4 Record of the Constitutional
Commission 33).

143. Id. at 944.

144. Certi cate of Title No. 2 covering the 148 hectares of Baguio Municipality was issued
not in the name of Cariño who died on June 6, 1908, but to his lawyers John
Hausserman and Charles Cohn and his attorney-in-fact Metcalf Clarke. Hausserman,
Cohn and Clarke sold the land to the U.S. Government in a Deed of Quitclaim — Richel B.
Langit, Igorot Descendants Claim Rights to Camp John Hay , Manila Times, p. 1, Jan. 12,
1998.
145. Id. at 939.
146. 57 P.L.J. 268, 293-296 [1982].
147. From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish parts of his doctoral
dissertation at the Yale Law School entitled "Invisible Peoples: A History of Philippine
Land Law." Please see The Legal Bases of Philippine Colonial Sovereignty: An Inquiry ,
62 P.L.J. 279 [1987]; Land Rights, Land Laws and Land Usurpation: The Spanish Era
(1568-1898), 63 P.L.J. 82 [1988]; The Colonial Dichotomy: Attraction and
Disenfranchisement, 63 P.L.J. 112; Invisible Peoples and a Hidden Agenda: The Origins
of Contemporary Philippine Land Laws (1900-1913), 63 P.L.J. 249.
148. "Native title" is a common law recognition of pre-existing aboriginal land interests in
Australia — Maureen Tehan, Customary Title, Heritage Protection, and Property Rights in
Australia: Emerging Patterns of Land Use in the Post-Mabo Era, 7 Paci c Rim Law &
Policy Journal, No. 3, p. 765 [June 1998].
149. Lynch, Native Titles, supra, Note 164, p. 293.
150. 39 Phil. 660 [1919].

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 151. Id. at 712-713.
152. Id. at 694.
153. Id. at 700.
154. 42 C.J.S., Indians, Sec. 29 [1944 ed.].
155. There are 3 kinds of Indian reservations: (a) those created by treaties prior to 1871; (b)
those created by acts of Congress since 1871; and (c) those made by Executive Orders
where the President has set apart public lands for the use of the Indians in order to keep
them within a certain territory — 42 C.J.S., Indians, Sec. 29 citing Sioux Tribe of Indians
v. U.S . 94 Ct. Cl. 150, 170, certiorari granted 62 S. Ct. 631, 315 U.S. 790, 86 L.Ed. 1194,
a rmed 62 S. Ct. 1095, 316 U.S. 317, 86 L.Ed. 1501. It is observed that the rst two
kinds may include lands possessed by aboriginal title. The last kind covers Indian
reservations proper.
Until 1871, Indian tribes were recognized by the United States as possessing the
attributes of nations to the extent that treaties were made with them. In that year,
however, Congress, by statute, declared its intention thereafter to make the Indian
tribes amenable directly to the power and authority of the United States by the
immediate exercise of its legislative power over them, instead of by treaty. Since then,
Indian affairs have been regulated by acts of Congress and by contracts with the
Indian tribes practically amounting to treaties — 41 Am Jur 2d, Indians, Sec. 55 [1995
ed].
156. 42 C.J.S. Indians, Sec. 28 [1944 ed.].
157. Ibid.; see also U.S . v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct. 248, 314 U.S. 339, 86 L.Ed.
260 [1941].
158. Ibid.
159. 8 Wheat 543, 5 L.Ed. 681 [1823].
160. Id. at 680.
161. Id. at 689.
162. Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and Extinguishment of
Aboriginal Title to Indian Lands, Sec. 2[a] [1979].
163. Buttz v. Northern Pac. R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55, 30 L.Ed. 330, 335 [1886].
164. Lynch, Native Title, supra, at 293-294; Cohen, Original Indian Title, 32 Minn. L.R. 48-49
[1947].
165. 6 Pet 515, 8 L. Ed 483 [1832].

166. Id. at 499.

167. Id. at 500.
168. Id. at 501.
169. The title of the government to Indian lands, the naked fee, is a sovereign title, the
government having no landlord from whom it holds the fee — Shoshone Tribe of Indians
of Wind River Reservation in Wyoming v. U.S ., 85 Ct. Cl. 331, certiorari granted U.S . v.
Shoshone Tribe of Indians , 58 S. Ct. 609, 303 U.S. 629, 82 L.Ed. 1090, a rmed 58 S. Ct.
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 794, 304 U.S. 111, 82 L. Ed. 1213, 1218-1219 [1938].
170. Buttz v. Northern Pac. R. Co., Dak., at 30 L.Ed. 330, 335; Beecher v. Wetherby, Wis., 95
U.S. 517, 24 L. Ed. 440, 441 [1877]; see also 42 C.J.S., Indians, Sec. 28 [1944 ed.].
171. Annotation, Proof and Extinguishment of Aboriginal Title to Indian Lands, 41 ALR Fed
425, Sec. 2[b] [1979] — hereinafter cited as Aboriginal Title to Indian Lands.
172. Ibid.; see also Tee Hit Ton Indians v . U.S ., 348 U.S. 272, 99 L. Ed. 314, 320, 75 S. Ct.
313 [1955], reh den 348 U.S. 965, 99 L.Ed. 753, 75 S. Ct. 521.
173. Ibid.; Tee Hit Ton Indians v. U.S ., at 99 L. Ed. 320.
174. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73, 94 S Ct. 772
[1974]; U.S . v. Alcea Bank of Tillamooks, 329 U.S. 40, 91 L. Ed. 29. 67 S. Ct. 167 [1946].

175. For compensation under the Indian Claims Commission Act, the proof of aboriginal
title rests on actual, exclusive and continuous use and occupancy for a long time prior to
the loss of the property. (The Indian Claims Commission Act awards compensation to
Indians whose aboriginal titles were extinguished by the government through military
conquest, creation of a reservation, forced con nement of Indians and removal of
Indians from certain portions of the land and the designation of Indian land into forest
preserve, grazing district, etc.) — Aboriginal Title to Indian Lands, supra, at Secs. 2[a],
3[a], pp. 431, 433, 437.
176. Aboriginal Title to Indian Lands, supra, at Sec. 2[b], p. 435.
177. 41 Am Jr 2d, Indians, Sec. 59 [1995 ed.].
178. An allotment of Indian land contains restrictions on alienation of the land. These
restrictions extend to a devise of the land by will — Missouri, K & T .R. Co. v. U.S ., 235 U.S.
37, 59 L. Ed. 116, 35 S. Ct. 6 [1914]; A railroad land grant that falls within Indian land is
null and void — Northern P.R. Co. v. U.S ., 227 U.S. 355, 57 L. Ed. 544, 33 S. Ct. 368 [1913];
Portions of Indian land necessary for a railroad right of way were, by the terms of the
treaty, declared "public land," implying that land beyond the right of way was private —
Kindred v. Union P.R. Co., 225 U.S. 582, 56 L. Ed 1216, 32 S. Ct. 780 [1912]; see also 41
Am Jur 2d, Indians, Sec. 58 [1995 ed.].

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

180. 42 C.J.S. Indians, Sec. 29 [1944 ed.]
181. Ibid.
182. North American Indians have made much progress in establishing a relationship with
the national government and developing their own laws. Some have their own
government-recognized constitutions. Usually the recognition of Indian tribes depends
on whether the tribe has a reservation. North American tribes have reached such an
advanced stage that the main issues today evolve around complex jurisdictional and
litigation matters. Tribes have acquired the status of sovereign nations within another
nation, possessing the right to change and grow — Jose Paulo Kastrup, The
Internationalization of Indigenous Rights from the Environmental and Human Rights
Perspective, Texas International Law Journal, vol. 32: 97, 104 [1997].
183. Lynch, Native Title, supra, at 293.

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 184. Dante Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends in
Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 43, 40 [Aug. 1992]; see
also Tee Hit Ton Indians v. U.S ., supra, at 320.
185. Ibid.
186. D. Gatmaytan, supra, citing Churchill, The Earth is Our Mother: Struggles for American
Indian Land and Liberation in the Contemporary United States, The State of Native
America: Genocide, Colonization and Resistance 139 (M. Jaimes 1992); and Indian Law
Resource Center, United States Denial of Indian Property Rights: A Study in Lawless
Power and Racial Discrimination, Rethinking Indian Law 15 (National Lawyers Guild,
Committee on Native American Struggles 1982).
187. Id., Note 28, stating that some earlier decisions of the U.S. Supreme Court have held
that Congress is subject to the strictures of the Constitution in dealing with Indians.
When Indian property is taken for non-Indian use, the U.S. government is liable for
payment of compensation, and an uncompensated taking may be enjoined. F. Cohen,
Handbook of Federal Indian Law 217 [1982], citing Shoshone Tribe v . U.S . 299 U.S. 476
[1937]; Choate v. Trapp, 224 U.S. 665 [1912]; and Lane v. Pueblo of Santa Rosa, 249 U.S.
110 [1919].
188. See Discussion, infra, Part IV (c) (2).
189. Susi v. Razon, 48 Phil. 424 [1925]; Herico v. Dar, 95 SCRA 437 [1980].
190. Ibid.
191. Director of Lands v. Intermediate Appellate Court, 146 SCRA 509 [1986]; Director of
Lands v. Buyco, 216 SCRA 78 [1992]; Republic v. Court of Appeals and Lapina, 235 SCRA
567 [1994].
192. 75 Phil. 890 [1946].
193. Id. at 892.
194. Sec. 48 [b], C.A. 141.
195. Sec. 48 [c], C.A. 141, as amended. This provision was added in 1964 by RA. 3872.
196. Section 12, IPRA.
197. "Time immemorial" refers "to a period of time when as far back as memory can go,
certain ICCs/IPs are known to have occupied, possessed in the concept of owner, and
utilized a de ned territory devolved to them, by operation of customary law or inherited
from their ancestors, in accordance with their customs and traditions." (Sec. 3 [p], IPRA).
198. Section 2, C.A. 141.
199. Section 8, C.A. 141.
200. The classi cation of ancestral lands 18% in slope or over as alienable in the IPRA is
an exception to Section 15, P.D. 705, the Revised Forestry Code.
201. Charles MacDonald, Indigenous Peoples of the Philippines: Between Segregation and
Integration, Indigenous Peoples of Asia, supra, at pp. 345, 350.
202. Section 5, Article XII, 1987 Constitution.

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

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 204. Words in bold were amendments introduced by R.A. 3872 on June 18, 1964. On
January 25, 1977, however, Sec. 48 [b] and 48 [c] were further amended by P.D. 1073
stating that these provisions on cultural minorities apply only to alienable and
disposable lands of the public domain — Please see Republic v. CA and Paran, 201
SCRA 1, 10-11 [1991].
205. Jus utendi, jus fruendi.
206. Jus abutendi.
207. Jus disponendi.
208. Jus vindicandi. Please see Tolentino, Civil Code, vol. II, pp. 45-46 [1992]; see also
Tolentino, vol. I, pp. 12-14.
209. Sec. 55, IPRA provides:
"SECTION 55. Communal rights. — Subject to Section 56 hereof, areas
within the ancestral domains, whether delineated or not, shall be presumed to be
communally held: Provided, That communal rights under this Act shall not be
construed as co-ownership as provided in Republic Act No. 386, otherwise known as
the New Civil Code."
210. Ibid.
211. Article 494, Civil Code.
212. Antonio M. La Vina, Arguments for Communal Title, Part II, 2 Phil. Nat. Res. L.J. 23
[Dec. 1989].
213. Section 11, Corporation Code.
214. Sections 60-72, Corporation Code.
215. Section 117, Corporation Code. Please see also La Vina, Arguments for Communal
Title, Part II, supra, at 23.
216. Section 5, par. 2, Article XII, 1987 Constitution.
217. Customary law is recognized by the Local Government Code of 1991 in solving
disputes among members of the indigenous communities, viz:
"SECTION 412 (c). Conciliation among members of indigenous cultural
communities. — The customs and traditions of indigenous cultural communities shall
be applied in settling disputes between members of the cultural communities."
218. Law writes custom into contract — Hongkong & Shanghai Bank v. Peters, 16 Phil. 284
[1910].
The Civil Code provides:
"ARTICLE 11. Customs which are contrary to law, public order or public
policy shall not be countenanced."
"ARTICLE 12. A custom must be proved as a fact, according to the rules of
evidence."
219. Article 78 on marriages between Mohammedans or pagans who live in the non-
Christian provinces — this is now Art. 33 of the Family Code; Art. 118, now Art. 74 of the
Family Code on property relations between spouses; Art. 577 on the usufructuary of
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 woodland; Art. 657 on easement of right of way for passage of livestock; Arts. 678, 1315,
1376, 1522, 1564 and 1577. Please see Aquino, Civil Code, vol. 1, p. 25.
220. Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In Re: Firm Name of Ozaeta
Romulo, 92 SCRA 1 [1979]; Yao Kee v . Sy-Gonzales, 167 SCRA 736 [1988]; Please see
Aquino, Civil Code, vol. 1, p. 26 for a list of other cases.
221. This situation is analogous to the Muslim Code or the Code of Muslim Personal Laws
(P.D. 1083) which took effect on February 4, 1977 despite the effectivity of the Civil Code
and the Family Code. P.D. 1083 governs persons, family relations and succession
among Muslims, the adjudication and settlement of disputes, the organization of the
Shari'a courts, etc.
222. Mari or P. Pagusara, The Kalinga Ili: Cultural-Ecological Re ections on Indigenous
Theora and Praxis of Man-Nature Relationship, Dakami Ya Nan Dagami, p. 36, Papers
and Proceedings of the 1st Cordillera Multi-Sectoral Land Congress, 11-14 March 1983,
Cordillera Consultative Committee [1984].
223. Section 2, Article XII.
224. A "co-production agreement" is de ned as one wherein the government provides input
to the mining operation other than the mineral resource — Section 26 (b), R.A. 7942, the
Philippine Mining Act of 1995.
225. A "joint venture agreement" is one where a joint-venture company is organized by the
government and the contractor with both parties having equity shares, and the
government entitled to a share in the gross output — Section 26 (c), R.A. 7942.
226. A mineral "production-sharing agreement" is one where the government grants to the
contractor the exclusive right to conduct mining operations within a contract area and
shares in the gross output. The contractor provides the nancing, technology,
management and personnel necessary for the implementation of the agreement —
Section 26 (a), R.A. 7942.
227. Section 26, R.A. 7942.
228. Section 3[d], People's Small-Scale Mining Act of 1991 (R.A. 7076) provides:
"Sec. 3 [d] 'Small-Scale mining contract' refers to co-production, joint venture or
mineral production sharing agreement between the State and a small-scale mining
contractor for the small-scale utilization of a plot of mineral land."

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

230. NCIP Administrative Order No. 1, Series of 1998.
231. In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988], Cruz, J., ponente, it was
declared that if a person is the owner of a piece of agricultural land on which minerals
are discovered, his ownership of such land does not give him the right to extract or utilize
the said minerals without the permission of the State to which such minerals belong —
also cited in H. de Leon, Phil. Constitutional Law, Principles and Cases , vol. 2, pp. 800-
801 [1999].
232. See Ground I, Grounds to Issue Writ of Prohibition, Petition, p. 14.
233. Section 7 (b) is subject to Section 56 of the same law which provides:
"SECTION 56. Existing Property Rights Regimes. — Property rights within the
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 ancestral domains already existing and/or vested upon effectivity of this Act, shall be
recognized and respected."
The law took effect 15 days upon publication in the O.G. or in any 2 newspapers
of general circulation (Sec. 84, IPRA). The IPRA was published in the Chronicle and
Malaya on Nov. 7, 1997.
234. Section 9 of the IPRA also gives the ICCs/IPs the ff. responsibilities over their
ancestral domains:

(a) Maintain Ecological Balance. — To preserve, restore, and maintain a

balanced ecology in the ancestral domain by protecting the ora and fauna, watershed
areas, and other reserves;
(b) Restore Denuded Areas. — To actively initiate, undertake and participate
in the reforestation of denuded areas and other development programs and projects
subject to just and reasonable remuneration;
(c) Observe Laws. — To observe and comply with the provisions of this Act
and the rules and regulations for its effective implementation."
Section 58 of the same law also mandates that ancestral domains or portions
thereof, which are found to be necessary for critical watersheds, mangroves, wildlife
sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined by
appropriate agencies with the full participation of the ICCs/IPs concerned shall be
maintained, managed and developed for such purposes. The ICCs/IPs concerned shall
be given the responsibility to maintain, develop, protect and conserve such areas with
the full and effective assistance of government agencies.

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

236. Under the Small-Scale Mining Act of 1991, "small-scale mining" refers to "mining
activities which rely heavily on manual labor using simple implements and methods and
do not use explosives or heavy mining equipment" — Section 3 [b], R.A. 7076.
237. See infra., pp. 77-79.
238. Andrew Gray, The Indigenous Movement in Asia, Indigenous Peoples of Asia, ed. By
Barnes, Gray and Kingsbury, pub. By Ass'n. for Asian Studies, at 35, 42 [1995].
239. E.g. International Indian Treaty Council, World Council of IPs.
240. Gray, The Indigenous Movement in Asia, supra, at 44, citing the International Work
Group for Indigenous Affairs, 1988.
241. Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the
Environmental and Human Rights Perspective, 32 Texas International Law Journal 97,
102 [1997].
242. Benedict Kingsbury, " Indigenous Peoples" in International Law: A Constructivist
Approach to the Asian Controversy, The American Journal of International Law, vol.
92:414, 429 [1998].
243. The World Bank supported the Chico Dam project. Due to the Kalingas' opposition, the
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 WB pulled out of the project but the con ict between the Philippine government and the
natives endured long after — Marcus Colchester, Indigenous Peoples' Rights and
Sustainable Resource Use in South and Southeast Asia, Indigenous Peoples of Asia,
supra, pp. 59, 71-72.
244. Kingsbury, supra, at 417.
245. Section 22, Article II, 1987 Constitution.
246. Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second Reading,
November 20, 1996, p. 20.
247. Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the International
Labor Organization, and the ILO-Bilance- Asia Dep't, p. 3 [1999].
248. Also referred to as the "Indigenous and Tribal Peoples Convention, 1989."
249. See Introduction to ILO Convention No. 169, par. 4.
250. Id., pars. 5 and 6.
251. Perfecto V. Fernandez, Towards a De nition of National Policy on Recognition of
Ethnic Law within the Philippine Legal Order, 55 P.L.J. 383, 385 [1980].
252. Samuel K. Tan, A History of the Philippines, Manila Studies Association, Inc. and the
Phil. National Historical Society, Inc., p. 6 [1997].

253. Fernandez, supra, at 385, 391.

VITUG, J.:
1. People vs. Vera, 65 Phil. 56, 89; Macasiano vs. National Housing Authority, 224 SCRA
236, 244.

2. Am Jur § 188, p. 581, S. v D., 410 US 641, 35 L Ed 2d 536, 93 S Ct 1146.

3. Legaspi vs. Civil Service Commission, 150 SCRA 530, 540; Tañada vs. Tuvera, 136 SCRA
27, 36, 37.
4. Defensor Santiago, Miriam, Constitutional Law, First Edition, 1994, p. 11; see also Rev.
Fr. Joaquin Bernas, S.J., on the 1987 Constitution of the Republic of the Philippines,
1996 Ed., pp. 336-337.
5. Oposa vs. Factoran, Jr., 224 SCRA 792.
6. Art. 11, Sec. 22.
7. Art. XII, Sec. 5.
8. Sec. 2.
9. II Aruego, The Framing of the Philippine Constitution, p. 594.
10. Ibid., p. 595.
11. Ibid., p. 600.
12. CONST., Art. XII, Sec. 2; Miners Association of the Philippines, Inc., vs. Factoran, Jr., 240
SCRA 100.
13. 41 Phil. 935.
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 14. CONST., Art. II, Sec. 1.
15 4 Record of the Constitutional Commission 32.
16. 146 SCRA 446.
KAPUNAN, J.:
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 de nition 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 House Bill No. 9125, Journal of August 20 and 21, 1997 of the House of
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 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 bene t 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.
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 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. WEBSTER'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); Osmeña v. COMELEC , 199 SCRA 750
(1991); Basco v. PAGCOR, 197 SCRA 52 (1991); Carpio v. Executive Secretary , 206 SCRA
290 (1992).
I n 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 o cial 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).
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 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 nance the initial
implementation of this Act shall be charged against the current years 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 O ce for Northern Cultural Communities
(ONCC) and the O ce for Southern Cultural Communities (OSCC), created under
Executive Order Nos. 122-B and 122-C respectively, are hereby merged as organic o ces
of the NCIP and shall continue to function under a revitalized and strengthened structure
to achieve the objectives of the NCIP . . . .
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.
xxx xxx xxx

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;
xxx xxx xxx
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:
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 (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 shing grounds, and all improvements made by them at any time
within the domains;
xxx xxx xxx
61. Section 3(1) 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; . . .
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 de ned 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.
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 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 nds signi cance 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 de ned 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.

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 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 . . . after distributing to the natives what may be
necessary for tillage and pasteurage, con rming 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).] (Italics 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 su cient if they shall show that ancient possession, as a valid title
by prescription; . . . . [Quoted in Valenton v. Murciano, supra, at 546.] (Italics 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, . . . .
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.
xxx xxx xxx
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
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 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
lands, 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, pp. 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- ve years, renewable
for another twenty- ve years, except as to water rights for irrigation, water supply,
sheries 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.

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 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 bene t 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 e cient 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. (Italics 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. De nition 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
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 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 shing 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 bene t and share the
pro ts 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; . . . (Italics supplied.) (c)

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
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 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 fty 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
su cient to establish a right to a patent thereto. On appeal, the United States Supreme
Court a rmed 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 in ammable 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 a rming the State's
ownership over minerals:

Art. 339. Property of public dominium is —

xxx xxx xxx
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 t, subject to any
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 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 de ned 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
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 license, concession, or lease for the exploitation, or utilization of any of the natural
resources shall be granted for a period exceeding twenty- ve years, renewable for
another twenty- ve years, except as to water rights for irrigation, water supply, sheries,
or industrial uses other than the development of water power, in which cases bene cial
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, sheries, 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- ve years, renewable for not more than twenty- ve years,
except as to water rights for irrigation, water supply, sheries, or industrial uses other
than the development of water power, in which cases, bene cial 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, sheries, forests or timber, wildlife, ora 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- ve years,
renewable for not more than twenty- ve 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:
xxx xxx xxx

b) Right to Develop Lands and Natural Resources. — Subject to Section 56 hereof,

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 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 bene t and share the
pro ts 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- ve (25) years renewable for not more than twenty- ve
(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, nally, 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. Certi cation 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 certi cation from the NCIP that the area affected does not overlap with any
ancestral domain. Such certi cation shall only be issued after a eld-based
investigation is conducted by the Ancestral Domains O ce of the area concerned:
Provided, That no certi cation 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, nally , That the ICCs/IPs shall have the right
to stop or suspend, in accordance with this Act, any project that has not satis ed 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.
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 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 sh farming, with priority to subsistence shermen 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 shermen, especially of local
communities, to the preferential use of the communal marine and shing resources,
both inland and offshore. It shall provide support to such shermen through appropriate
technology and research, adequate nancial, production, and marketing assistance, and
other services. The State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore shing grounds of subsistence shermen 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 de nes "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 people'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.
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 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
speci cally 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 o ces, 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
certi cation 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 certi cation
shall be a condition precedent to the filing of a petition with the NCIP.
171. Section 62. Resolution of Con icts . — In cases of con icting 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.
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 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;
xxx xxx xxx

Sec. 63. Applicable Laws. — Customary laws, traditions and practices of the ICCs/IPs of
the land where the con ict arises shall be applied rst 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.
181. R.A. No. 7160 reads:

Sec. 399. Lupong Tagapamayapa. —

xxx xxx xxx
(f) I n 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.
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 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.

MENDOZA, J.:
1. Lopez v. Roxas, 17 SCRA 756, 761 (1966).
2. Muskrat v. United States, 279 U.S. 346, 55 L. Ed. 246 (1911).
3. 42 SCRA 448, 481 (1971) (emphasis on the original).
4. Panganiban, J., Separate Opinion, p. 2.
5. Vitug, J., Separate Opinion, p. 1.
6. 1 Cranch 137, 2 L.Ed. 60 (1803).
7. Occeña v. Commission on Elections ; Gonzales v. The National Treasurer , 104 SCRA 1
(1981); Mitra v. Commission on Elections, 104 SCRA 59 (1981).
8. Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
9. Philippine Association of Colleges and Universities v. Secretary of Education , 97 Phil.
806 (1955).
10. 16 Phil. 366 (1910).
11. 136 SCRA 27 (1985).
12. Kapunan, J., Separate Opinion, pp. 21-23.
13. Supra, note 10.
PANGANIBAN, J.:
1. Kilosbayan v. Morato , 250 SCRA 130, 140, November 16, 1995; Association of Small
Landowners v. Secretary of Agrarian Reform , 175 SCRA 343, 365, July 14, 1989; Antonio
v. Dinglasan, 84 Phil. 368 (1949).
2. Tañada v. Angara , 272 SCRA 18, 46, May 2, 1997; Santiago v. Comelec , 270 SCRA 106,
123-24, March 19, 1997; Basco v. PAGCOR, 197 SCRA 52, 60, May 14, 1991.

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 3. Tañada v. Angara, ibid.
4. §5, Art. XII, 1987 Constitution.

5. 16 CJS §3.
6. 16 Am Jur 2d §2.
7. Ibid.
8. §22, Art. II of the Constitution.
9. Abaoag v. Director of Lands, 45 Phil. 518 (1923), cited in petitioners' Memorandum.
10. Soledad M. Cagampang-de Castro, "The Economic Policies on Natural Resources Under
the 1987 Constitution Revisited," Journal of the Integrated Bar of the Philippines, Vol.
XXV, Nos. 3 & 4 (1999), p. 51.
11. In a republican system of government, the concept of jura regalia is stripped of royal
overtones; ownership is vested in the State, instead. (Joaquin G. Bernas, SJ, The
Constitution of the Republic of the Philippines: A Commentary, 1996 ed., pp. 1009-1010.)
12. II Aruego, The Framing of the Philippine Constitution 603, quoted in Bernas, supra, p.
1010.
13. §3 Art. XII, 1987 Constitution.
14. 160 SCRA 228, 239, April 15, 1988.
15. 261 SCRA 528, September 9, 1996.
16. NCIP's Memorandum, p. 24.
17. 75 Phil. 890, 892, August 31, 1946.
18. Intervenors' Memorandum, pp. 33 et seq.
19. "SEC. 57. Natural Resources within Ancestral Domains. — The ICCs/IPs shall have
priority rights in the harvesting, extraction, development or exploitation of any natural
resources within the ancestral domains. . . . ."
20. 41 Phil. 935, February 23, 1909.
21. 172 SCRA 455, 463, April 18, 1989, per Gutierrez Jr., J.
22. "(c) Members of the national cultural minorities who by themselves or through their
predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation of lands of the public domain suitable to agriculture,
whether disposable or not, under a bona de claim of ownership for at least 30 years
shall be entitled to the rights granted in subsection (b) hereof. (As amended by R.A. No.
3872, Section 1, approved June 18, 1964)."
23. 284 SCRA 617, 633, January 22, 1998, per Puno, J.
24. "a ) Ancestral Domains — Subject to Section 56 hereof, refers to all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural
resources therein, held under a claim of ownership, occupied or 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
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 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 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."
25. "b) Ancestral Lands — Subject to Section 56 hereof, refers to lands occupied, possessed
and utilized by individuals, families and clans who are members of the ICCs/IPs since
time immemorial, by themselves or through their predecessors-in-interest, under claims
of individual or traditional group ownership, continuously, to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth, or as a
consequence of government projects and other voluntary dealings entered into by
government and private individuals/corporations, including, but not limited to, residential
lots, rice terraces or paddies, private forests, swidden farms and tree lots."
26. Director of Lands and Director of Forest Development v. Intermediate Appellate Court ,
March 2, 1993; Director of Lands v. Aquino , 192 SCRA 296, December 17, 1990;
Sunbeam Convenience Foods, Inc. v. Court of Appeals, January 29, 1990.
27. Ibid. , Margolles v. Court of Appeals , February 14, 1994; Gordula v. Court of Appeals ,
supra.
28. Republic v. Sayo, October 31, 1990, per Narvasa, J. (later CJ). See also Republic v. Court
of Appeals, supra.
29. Webster's Third New International Dictionary ; Petitioners' Memorandum, p. 41.
30. Ibid.
31. §2, Art. II of the Constitution.
32. Cecilio R. Laurente, "The King's Hand: The Regalian Doctrine as a Contributing Factor in
the Mindanao Con ict," Human Rights Agenda, Vol. 5, Issue No. 7, July & August 2000,
pp. 6-7.
33. Ibid.
34. Solicitor General's Memorandum, p. 3; rollo, p. 651.
35. Ibid., pp. 4-5.
36. Ibid. See also Datu Vic Saway, "Indigenous Peoples and the Uplands: A Situationer,"
Proceedings of the 6th Upland NGO Consultative Conference, 23-27 August 1998, p. 30.
37. Or (3) in case of large-scale exploration, development and utilization of minerals, enter
— through the President — into "agreements with foreign-owned corporations involving
either technical or nancial assistance." ( Miners Association of the Philippines v.
Factoran Jr., 240 SCRA 100, January 16, 1995.)
38. §7(b), R.A. 8371.
39. §57, ibid.
40. §7(b), ibid.

41. As stated earlier, Sec. 57 of IPRA, insofar as it grants them such priority, is
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 constitutional.

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