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SEPARATE OPINION

(Concurring and Dissenting)

PANGANIBAN, J.: chanrobles virtual law library

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 satisfied that the various aspects of this controversy have been fully presented and impressively argued by the parties. Moreover, prohibition and mandamus are proper legal remedies³ 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} chanrobles virtual law library

With due respect, however, I dissent from the ponencias resolution of the two main substantive issues, which constitute the core of this case. Specifically, 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 -- chanrobles virtual law library

1. It recognizes or, worse, grants rights of ownership over lands of the public domain, waters, x x x 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 natural wealth.chanrobles virtual law library

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. chanrobles virtual law library

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 beneficial 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. chanrobles virtual law library

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 benefit 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.

^{The Constitution Is a Compact} chanrobles virtual law library

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. chanrobles virtual law library

RA 8371, which defines 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 specifically, 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} chanrobles virtual law library

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) 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. chanrobles virtual law library

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 x x x exploration, occupation and purchase [of mines] and the land in which they are found."[10 To a certain extent, private individuals were entitled to own, exploit and dispose of mineral resources and other rights arising from mining patents. chanrobles virtual law library

This US policy was, however, rejected by the Philippine Commonwealth in 1935 when it crafted and ratified our first Constitution. Instead, the said Constitution embodied the Regalian Doctrine, which more definitively declared as belonging to the State all lands of the public domain, waters, minerals and other natural resources.[11 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: chanrobles virtual law library

"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-five years, renewable for another twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant." chanrobles virtual law library

The concept was carried over in the 1973 and the 1987 Constitutions. Hence, Sections 8 and 9, Article XIV of the 1973 Constitution, state: chanrobles virtual law library

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

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 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 financial, 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 financial, technical, management, or other forms of assistance are hereby recognized as such." chanrobles virtual law library

Similarly, Section 2, Article XII of the 1987 Constitution, provides: chanrobles virtual law library

"SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production,int 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-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. chanrobles virtual law library

"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. chanrobles virtual law library

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

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

"The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution." chanrobles virtual law library

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.[12 chanrobles virtual law library

Thus, after expressly declaring that all lands of the public domain, waters, minerals, 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 classifications and expressly states that only agricultural lands of the public domain shall be alienable. We quote below the relevant provision:¹³ chanrobles virtual law library

"SEC. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified 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-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. x x x." chanrobles virtual law library

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 peoples ancestors since time immemorial. chanrobles virtual law library

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 States 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. chanrobles virtual law library

In Republic v. Court of Appeals,¹⁴ 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. chanrobles virtual law library

In Atok Big-Wedge Mining Company v. IAC,¹⁵ the Court clarified 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. chanrobles virtual law library

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 nations 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 countrys resources. chanrobles virtual law library

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.[16 I say, however, that such claim finds 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. chanrobles virtual law library

As early as Oh Cho v. Director of Lands,¹⁷ 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). chanrobles virtual law library

On the other hand, Intervenors Flavier et al.¹⁸ differentiate the concept of ownership of ICCs/IPs from that which is defined 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 x x x the tribal right to use the land or to territorial control x x x, a collective right to freely use the particular territory x x x [in] the concept of trusteeship.' chanrobles virtual law library

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 benefit 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. chanrobles virtual law library

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. chanrobles virtual law library

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 IPRAs Section 57[19-- without the too-broad definitions under Section 3 (a) and (b) -- insofar as it grants them priority rights in harvesting, extracting, developing or exploiting natural resources within ancestral domains. chanrobles virtual law library

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.

^{Cario v. Insular Government Was Modified by the Constitution}chanrobles virtual law library

In this connection, I submit that Cario v. Insular Government[20 has been modified 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 Cario refers to land ownership only, not to the natural resources underneath or to the aerial and cosmic space above. chanrobles virtual law library

Significantly, in Director of Land Management v. Court of Appeals,[21 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).[22 The reason was that the property fell within the Central Cordillera Forest Reserve. This Court quoted with favor the solicitor generals following statements: chanrobles virtual law library

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. chanrobles virtual law library

Just recently, in Gordula v. Court of Appeals,²³ the Court also stated that forest land is incapable of registration, and its inclusion in a title nullifies that title. To be sure, the defense of indefeasiblity of a certificate 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} chanrobles virtual law library

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 wordings of the law belies this statement. chanrobles virtual law library

Section 3 (a)[24 defines 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 x x x. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds x x x bodies of water, mineral and other natural resources x x x." (Emphasis ours.) chanrobles virtual law library

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. chanrobles virtual law library

The indigenous concept of ownership, as defined under Section 5 of the law, 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. 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. chanrobles virtual law library

On the other hand, Section 3 (b)²⁵ of IPRA defines ancestral lands as referring to "lands occupied, possessed and utilized by individuals, families and clans of the ICCs/IPs since time immemorial x x x, under claims of individual or traditional group ownership, x x x 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. chanrobles virtual law library

I believe these statutory provisions directly contravene Section 2, Article XII of the Constitution, more specifically 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 first be reclassified and converted into alienable or disposable land for agricultural purposes by a positive act of the government.[26 Mere possession or utilization thereof, however long, does not automatically convert them into private properties.²⁷ The presumption is that all lands not appearing to be clearly within private ownership are presumed to belong to the State. Hence, x x x 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.²⁸ chanrobles virtual law library

Respondents insist, and the ponencia agrees, that paragraphs (a) and (b) of Sections 3 are merely definitions and should not be construed independently of the other provisions of the law. But, precisely, a definition is a statement of the meaning of a word or word group.[29 It determines or settles the nature of the thing or person defined.³⁰ Thus, after defining 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 definition. For that would be misleading the people who would be bound by the law. In other words, since RA 8371 defines 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. chanrobles virtual law library

In fact, Intervenors Flavier et al. submit that everything above and below these ancestral domains, with no specific 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 fiat, has been adopted as part of the law of the land.[31

^{No Land Area Limits Are Specified by RA 8371} chanrobles virtual law library

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. chanrobles virtual law library

RA 8371, however, speaks of no area or term limits to ancestral lands and domains. In fact, by their mere definitions, 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." chanrobles virtual law library

Nomadic groups have no fixed 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. chanrobles virtual law library

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 first set foot on our country."³² 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.³³ chanrobles virtual law library

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.[34 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.³⁵ This means that four fifths of its natural resources and one third of the country's land will be concentrated among 12 million Filipinos constituting 110 ICCs,[36 while over 60 million other Filipinos constituting the overwhelming majority will have to share the remaining. These figures 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} chanrobles virtual law library

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,int venture or production-sharing agreements with Filipino citizens or entities, 60 percent of whose capital is owned by Filipinos.³⁷ Such agreements, however, shall not exceed 25 years, renewable for the same period and under terms and conditions as may be provided by law. chanrobles virtual law library

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, benefit from and share in the profits from the allocation and the utilization thereof.[38 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.[39 Consistent with the Constitution, the rights of ICCs/IPs to exploit, develop and utilize natural resources must also be limited to such period. chanrobles virtual law library

In addition, ICCs/IPs are given the right to negotiate directly the terms and conditions for the exploration of natural resources,⁴⁰ 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. chanrobles virtual law library

I make clear, however, that to the extent that ICCs/IPs may undertake small-scale utilization of natural resources and cooperative fish farming, I absolutely have no objection. These undertakings are certainly allowed under the third paragraph of Section 2, Article XII of the Constitution. chanrobles virtual law library

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: chanrobles virtual law library

1. Whether the inclusion of private lands within the coverage of ancestral domains amounts to undue deprivation of private property chanrobles virtual law library

2. Whether ICCs/IPs may regulate the entry/exit of migrants chanrobles virtual law library

3. Whether ancestral domains are exempt from real property taxes, special levies and other forms of exaction chanrobles virtual law library

4. Whether customary laws and traditions of ICCs/IPs should first be applied in the settlements of disputes over their rights and claims chanrobles virtual law library

5. Whether the composition and the jurisdiction of the National Commission of Indigenous Peoples (NCIP) violate the due process and equal protection clauses chanrobles virtual law library

6. Whether members of the ICCs/IPs may be recruited into the armed forces against their will chanrobles virtual law library

I believe that the first 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 specific cases filed by those whose rights may have been injured by specific provisions of RA 8371.

^Epilogue chanrobles virtual law library

Section 5, Article XII of the Constitution, provides: chanrobles virtual law library

"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. chanrobles virtual law library

"The Congress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and extent of ancestral domain." chanrobles virtual law library

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. chanrobles virtual law library

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.[41 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 by our previous and present Constitutions, would be not only unjust but also subversive of the rule of law. chanrobles virtual law library

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 fires of turmoil to a conflagration of national proportions. chanrobles virtual law library

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. chanrobles virtual law library

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. chanrobles virtual law library

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.

[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 Taada 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.

[3 Tanada 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., p. 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 NCIPs 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. x x x.

[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 fide 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 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 Websters 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 Conflict," 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 6^th 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 financial assistance. (Miners Association of the Philippines v. Factoran Jr., 240 SCRA 100, January 16, 1995.)

[38 7(b), RA 7381.

[39 57, ibid.

[40 7(b), ibid.

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