Concurring and Dissenting Opinion

The Constitution Is a Compact

The Constitution is the fundamental
law of the land, to which all other
laws must conform. Having the status
of a supreme and all-encompassing
law, it speaks for all the people, not
just for the majority or for the
minority at intermittent times. No
group, however blessed, and no
sector, however distressed, is except
from its compass.
RA 8371 which defines the rights of
indigenous cultural communities and
indigenous peoples 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. However,
it has provisions that run directly afoul of
our fundamental law from which it claims
origin and authority specifically Sections
3(a) and (b), 5, 6, 7 (a) and 8 and other
related provisions contravene the Regalian
Doctrine which is the basic foundation of
the State’s property regime.
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,
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 land, 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 their 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;
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;
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 ICC's/IP's private but community
property which belongs to all generations
and therefore cannot be sold, disposed or
destroyed. It likewise covers sustainable
traditional resource rights.
Ancestral lands and domains shall
consist of all areas generally
belonging to ICCs/IPs as referred
under Sec. 3, items (a) and (b) of this
Act.
The rights of ownership and possession of
ICCs/IPs t their ancestral domains shall be
recognized and protected. Such rights shall
include:

 Rightsof Ownership.- The right to claim

ownership over lands, bodies of water
traditionally and actually occupied by
ICCs/IPs, sacred places, traditional hunting
and fishing grounds, and all improvements
made by them at any time within the
domains;
 Right to Develop Lands and Natural Resources. –
Subject to Section 56 hereof, right to develop, control
and use lands and territories traditionally occupied,
owned, or used; to manage and conserve natural
resources within the territories and uphold the
responsibilities for future generations; to benefit and
share the profits from allocation and utilization of the
natural resources found therein; the right to negotiate
the terms and conditions for the exploration of
natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the
conservation measures, pursuant to national and
customary laws; the right to an informed and
intelligent participation in the formulation and
implementation of any project, government or
private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for
any damages which they sustain as a result of the
project; and the right to effective measures by the
government to prevent any interfere with, alienation
and encroachment upon these rights;
 Right to Stay in the Territories-

The right to stay in the territory and not be removed

therefrom. No ICCs/IPs will be relocated without their
free and prior informed consent, nor through any means
other than eminent domain. Where relocation is
considered necessary as an exceptional measure, such
relocation shall take place only with the free and prior
informed consent of the ICCs/IPs concerned and whenever
possible, they shall be guaranteed the right to return to
their ancestral domains, as soon as the grounds for
relocation cease to exist. When such return is not
possible, as determined by agreement or through
appropriate procedures, ICCs/IPs shall be provided in all
possible cases with lands of quality and legal status at
least equal to that of the land previously occupied by
them, suitable to provide for their present needs and
future development. Persons thus relocated shall likewise
be fully compensated for any resulting loss or injury;
 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 system: Provided,
That the displaced ICCs/IPs shall have the right to
return to their abandoned lands until such time
that the normalcy and safety of such lands shall be
determined: Provided, further, That should their
ancestral domain cease to exist and normalcy and
safety of the previous settlements are not
possible, displaced ICCs/IPs shall enjoy security of
tenure over lands to which they have been
resettled: Provided, furthermore, That basic
services and livelihood shall be provided to them
to ensure that their needs are adequately
addressed.
 Rightto Regulate Entry of Migrants. - Right
to regulate the entry of migrant settlers and
organizations into the domains;

 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
 Right to Resolve Conflict. - Right to resolve
land conflicts 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.
 Public Domains and Natural
Resources are Owned by the State
and Cannot Be Alienated or Ceded
 Filipinos,whether indigenous or not, are
subject to the Constitution. Indeed, no one
is exempt from its all-encompassing
provisions. 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.
 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 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.
 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
 The concept of ownership, 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.
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
Modified by the Constitution
It was one of the basis of the authors of
ipra law in their claims that Ancestral
Domains and Ancestral Lands are already
owned and therefore they are considered
private and are not part of Public domains.
refers to all areas generally belonging to ICC’s/ IP’s
comprising lands, inland waters, coastal areas, and
natural resources therein, held under claim of
ownership,occupied,or possessed by ICC’s/ IP’s,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 xxx.It shall include
ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned
whether alienable and disposable or otherwise,
hunting grounds, xxx bodies of water, mineral and
natural resources.
refers to lands occupied, possessed and
utilized by individuals, families, clans of
the IIC’s/ IP’s since time immemorial xxx
under claims of individual or traditional
ownership, xxx including but not limited to,
residential lots. Rice terraces or paddies,
private forest, swidden farms and tree lots.
1.The ratio in the case of Carino should be
understood as referring only to a means by
which public agricultural land maybe
acquired by citizens.
2.That the claims of Petitioner Carino
refers to land ownership only, not to
the natural resources underneath or
to the aerial and cosmic space above.
In the case of Director of Land vs. CA the
court rejected a cultural minority member’s
registration of land under CA 141 Sec. 48(c)
because the property to be registered fell
within the Central Cordillera Forest Reserve
quoting the Sol.Gen. statement that “The
construction given by the CA to the
particular provision of law involved, as to
include even forest reserves as susceptible
to private appropriation is to
unconstitutionally apply such provision”.
1. Both 1973 and present 1987
Constitution do not include timber or forest
lands as alienable.

Sec.8 Article XIV 1973 Constitution States

that “with the exception of agricultural,
industrial, commercial, residential, and
resettlement lands of the public domain,
natural resources shall not be alienated.”

Section 2 Article XII, 1987 Constitution

expressly states that “with the exception of
agricultural lands, all other natural
resources shall not be alienated.”
Recent case of Gordula v, CA the court states
that “Forest land is incapable of
registration, and its inclusion in a title
nullifies that title. To be sure, the defense of
indefeasibility of a certificate of title issued
pursuant to a free patent does not lie
against the state in an action for reservation
of the land covered thereby when such land
is a part of a public forest or of forest
reservation, the patent covering forest land
being void ab initio.”
RA 8371 Violates the Inalienability
of Natural Resources and of Public
Domains
 Section 3 (a)
"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."
Section 3 (b)of IPRA
"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."
“holds that ancestral domains are the
ICC’c/IP’s private but common property
which belongs to all generations and
therefore cannot be sold, disposed or
destroyed”
No Land Area Limits Are
Specified by RA 8371
Under the present constitution, Filipino
citizens may acquire not more than 12
hectares of alienable public land whether
through purchase, homestead or grant
however they may hold by lease only if
more than 12 hectares but not exceeding
500 hectares. In R.A. 8371, no area or
term limits to ancestral lands and
domains has been stated, so meaning to
say they could cover everything held,
occupied, possessed by themselves or
through their ancestors communally or
individually since time immemorial.
This clearly indicates a violation of the
constitutional principles of a more equitable
distribution of opportunities, income and
wealth among Filipinos. There should be limit
for the vast tracts of the nation’s territory
because the law recognize their rights as part
of being a citizen but it must not disregard the
fact that enabling them to take advantage of
opportunities and privileges, withholds the rest
of the Filipino people, it would not only be
unjust but also subversive of the rule of law.
This is the essence of social justice enabling
the less fortunate to be able to compete with
the rich in equally enjoying the blessings of
prosperity, freedom and integrity.
 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
Epilogue
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 or relations
in determining the ownership and
extent of ancestral domain.
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.