Concurring And Dissenting Opinion

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:  Rights

of Ownership.- The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;

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. 

 Right

to 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”.

Both 1973 and present 1987 Constitution do not include timber or forest lands as alienable. 1.

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.