Weaving Worldviews Implications of Constitutional Challenges to tle Indigenous Peoples Rights Act of 1997! Marvie MV-F. Leoner? Republic Act No. 8371 or the Indigenous Peoples Rights Act (“IPRA”) was signed into law on October 29, 1997. It became effective on November 22, 1997. Its implementing Rules and Regulations were approved on June 9, 1998 and became effective fifteen (15) days after its publication. On September 25, 1998, a special civil action for Mandamus and Prohibition (hereafter only “petition”) was filed by former Supreme Court Justice Isagani Cruz and Atty. Cesar Europa against the Secretaries of Eavironment and Natural Resources and of Budget and Management and against the Chairman and Commissioners of the National Commission on Indigenous Peoples (“NCIP”)? to enjoin the implementation of IPRA in so far as it recognizes the rights of indigenous peoples to their ancestral lands and domains. ‘The petition in Cruz v. NCIP does not only raise questions on the constitutionality of IPRA. The petitioners raise the more fundamental question. It asks whether the Republic of the Philippines in 1998, in the centennial of its independence, is still beholden to culturally hostile and unjust legal concepts and doctrines imposed during the colonial era, But it may also be asking whether the 1987 constitution can be interpreted so as to weave indigenous worldviews into the fabric of the national legal system, Lhe primary substantive challenge raised by the Petitioners is based on the Regalian Doctrine. ‘The doctrine is a mythical and historically fallacious principle that permeates the thinking of, but has prompted little reflection within, the Filipino legal profession, Every Filipino lawyer learns in law school that the Regalian Doctrine has been embedded in the Constitutions of 1935, 1973, and most recently, section 2 of the 1987 Constitution. ‘This article (apart from its posteript) was originally writen during the pendency of Cruz etal vs. Secretary of Lavironiment and Natural resources, etal, GR, No. (33383, which was decided by the Supreme Court on December 6, 2006 (347 SCR 128). Tt thas been abridged for this isve of the Journal Facully College La, Univers ofthe Pilippies Funder and Chain Resources Center Inc. Kasam sa Kalikesan ( of the Board of Trustees, Legal Rights and Natural {C-KSK/FoE- Philippines); Convenor, Allemative Law Groups Network, 1998+ referred to as “Cruz v. NICP* for brevity JOURNAL 9 tle Integra Bar of te Phuippine: 153Weaving Workdiess: Implications of Constitutional Challenges tothe Undigonons Peeples Rights Act of 14 "e vp ae mes op Despite the doctrine’s longevity, there is hardly any reflection on its origins and implications. The Regalian Doctrine asserted by the Petitioners in Cruz v. NCIP is implicitly premised on the largely unquestioned belief that at some unspecified moment during the Spanish colonial period, sovereign sights of the Philippine people's forebears were usutped by and simultaneously vested in the Crowns of Castille and Aragon. At that moment, every native in the politically undefined and still largely unexplored and unconquered archipelago became a squatter — bereft of any legal rights to land or other natural resources ‘These implicit assumptions about the Regalian Doctrine are not supported by our legal and political history. These mistaken perspectives serve as rationale for much of policy thinking on natural resource management as well as indigenous peoples recognition. Article XII, Section 12 of the 1997 Constitution mandates that the State establish legal processes and procedures for identifying and recognizing ancestral domain right IPRA reflects the considered opinion of the legislature as to how best to fulfill its constitutional mandate. IPRA does not involve any abdication of State prerogatives. It does not sanction unjust taking of private lands. Rather, it establishes a long overdue legal process for recognizing private property rights of indigenous peoples, with appropriate constitutional safeguards. The law initiates procedures for rectifying long-standing injustices suffered by them. As such it ennobles the state by its belated but profoundly significant acknowledgment that some laws are not rooted in the colonial past, but originate and endure in our indigenous heritage. PEOPLES RIGHTS ACT (PRA) : MYTH OF THE REGALIAN DOCTRINE Petitioners and the Solicitor General both assert that Article XII, Section 2, article XII of the Constitution supports their interpretation of the “time-honored” principle of the Regalian Doctrine. They argue that, based on their interpretation of that single provision, sections 3 (a), 3 (b), 7 (a), 7 (b), 57 and 58 of IPRA deprive the State of its ownership and control over these lands and natural resources. 154 JOURNAL of he inetd Baro te PilpinsWearing Wortiws Impcations of Coesttatonal Chalet the ndigmous Pepe Rights Aa of 1997 This interpretation fails to consider other provisions in the Constitution, It is legally inaccurate considering the text, context, purposes and recent interpretations of these provisions of the Constitution, Ancestral Lands are Not Lands of the Public Domain Rights to Anceotral Lands as Vested and Private — The most authoritative articulation of the doctrine that time immemorial possession in the concept of owner creates the Presumption, heavily considered against the State, that the land is not public is in Cariao 4 Insular Government. That case is important for three reasons First, it declares that time immemorial Possession in the concept of owner is sufficient basis to claim protection of vested property tights. Holmes, speaking for a unanimous Supreme Court, then said — {Whatever the law upon these points may be, and we mean to go no further than the Gicessities Of the decision demand, every presumption is and ought to be against the Government in a ease like the present. [1 sgh, perhgts, be proper and safiient ay that shen, as far back as testimony or memory goes, the land bas been beld by individuals under a enn of private ownership it wil be presumed 10 bave been beld in the same way from befor the Speanish onguest, and never to have buen public land.” (emphasis ours) Second, it pronounces that this vested tight is principally embodied in the due process clause of the Constitution. Thus — _ 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 Ameriens Indians, the dominant purpose of the whites in America was to occupy the land. Tr obvious that, however state, the reason for out taking over the Philippines was different No-one, we suppose, would deny that, so far as consistent with paramount necessities, our frst objet in the internal-administration of the islands is to do justce to the natives not p » Rep. Act No. 346 as amen: * Commonwealth Act No. [41 as amended, 162 JOURNAL of tie Introd taro ie PhippsWeaving Worthan: lnpatons of Contitational Challenges tthe Indigenous Pepe: Righe e of 1297 This is a conclusion borne by a consideration of the following (a) “the textual, contextual and historical basis of the “Regalian Doctrine” as contained in Article XII, Section 2 of the Constitution; (b) the textual, contextual and historical basis of the second parageaph of Article XIL, Section 5, in relation to other provisions, of the Constitution; and (©) the special nature of the concepts of non-public (and therefore private) ownership of ancestral domains of indigenous peoples. Jura Regalia Reconsidered ‘The Regalian Doctrine has never been a permanent provision of the different versions of our constitutional framework. Petitioners themselves admit that the concept of ura rigalia is only embodied in Article XIL, Section 2, of the Constitution? ‘They acknowledge that this provision was largely based on the 1935 constitution.” This is consistent with the decisions of the Supreme Court. In Amok Big Wedge Méning Ca. us. Infermediate Appellate Court! (cited by the Petitioners in a different context), the Court reflected on the history of mining tights in the Philippines. Thus, “This compl of jura regalia enshrined in past and present Philippine constitutions, hes uot aviary ‘been the pronuiug principle in this jurisdiction; however, the abundant resources within out coastal frontiers have in the past filled not just one colonizer’s booty haul" (emphasis ours) Tris possible for rights over natural resources to vest on a private ( opposed to 4 public) holder if these were held prior to the 1935 Constitution In Fiance « Reanies, the Court was confronted with a conflict berween a foreign miner, who sought to establish a mincral claim made cven prior t but only relatively shortly before the enactment of the Philippine Bill of 1902, and an indigenous occupant, who had mined the area since time immemorial. Ruling on the nature of their tights and for the indigenous miner-plaintiff, the Court pronounced — “Rep. Act No 8371 Sf Patiton. par 6.1. pp. 18-16, 2 Petition. thied paragraph. p 2 {f PerHermosisiona. fF. Padilla (Chairman), Betlostin, Vig and Kapunan 1} concurring. 261 SCA $29 1996), Ibid. at $46, Einphssis ours © AO Phil, 101741909), JOURNAL of te tnicenta Buc of the Philppines 163Weaving Workisiews: Implications of Constitutional Challenges othe Tndigenons Paps Reghie Act of 1997 “This is the provision of law upon which the court below decided the case in favor of the plaintiffs, ‘This view of that court must, in our opinion, be sustained. ‘The statute of limitations of the Philippine Islands in force on July 1, 1902, was ten years. According to the evidence and the findings, the plaintiffs had held and worked these claims for more than that length of time prior to the 1* of July, 1902. ‘They had for more than forty years prior to that date been in possession thereof. That possession had been open, notorious, continuous and under a claim of ownership The locations made by Reavis in accordance with the act of Congress of July 1, 1902, were nor made until October of that year. They were made afier the rights of the plaintiffs hud become vested in caxcordance with the provisions of said sestion 45, and therefore such locations can not prejudice the Plaintiff" (emphasis ours) Again, in Aiok Big Wedge Mining Co. vs. Intermediate Appellate Court’, the nature of mining claims that were established under the Philippine Bill of 1902 was clarified” While exclusive rights to use and possession vest as soon this law, it was not immune from the police power of the State. Thus, s location was made under it can be said (1) that the rights under the Philippine Bill of 1902 of a mining claim holder over his claim has been made subject by the said Bill itself to the steict requirement that he actually performs work or undertakes improvements on the mine every year and does not merely file his affidavit of annual assessment, which requirement was correctly identified and declared in F.0. No. 141; and (2) that the same rights have buen terminated by PD. No, 1214, a police power enactment, under which non-application for mining lease amounts to waiver of all rights under the Philippine Bill of 1902 and application for mining lease amounts to waiver of the right under said Bill to apply for patent. In the light of these substantial conditions upon the rights of a mining claim holder under the Philippine Bill of 1902, there should remain no doubt now that such rights were not, in the first place, absolute or in the nature of ownership, and neither were they intended to be so." Atok Big Wedge n Intermediate Appellate Court" and Fiansa Reavis thus support the theory that rights could vest prior to the 1935 Constitution, notwithstanding the later introduction of the concept of ura regalia. Of course private rights, as in Atk Big Wedge, could always be the subject of police power regulation. © Fianza, etal. vs. Reavis, GR. No, L-2940, March 6, 1907, “+ Per Hermosisima, Je, Padilla (Chairman), Belloslle, Vitug and Kapunan, J} concurring. 261 SCRA 529 (1996). © Further qualifying United Paracale Mining v, Cour of Appeals, 232 SCRA 663. Precedents cited in favor of the apparent doctrine that the lucation vested almost absolute rights vis-i-vis the state were MeDanic , Apacible and Cuisia 42 Phil, 749: Gold Creek Ming v Rodriguez. 66 Pil. 259 (1939); Salacot Mining Company v. Rodrigues. 67 Phil. 97 (1939): Bumbao v. Denieks. | SCRA (1961); Coming v, Buendia, 21 SCRA 486 (1967), Benguet Consolidated Inc v: Republic, 143 SCRA 466 (1986), Republic + Court of Appeals, 160 SCRA228 (1988) and Atok Big Weeige Mining Co. Inc. Cour of Appeals. 193 SCRA TI (1991). Precents cited in favor ofthe apparent doctrine that mere iocation does not mean absolute owrership ate Santa Ross Mining Co., Ine + LLeido, Je, 156SCRA 1 (1987) Director of Lands v Kalahi Investments. Inc. 169 SCRA 683 (1989), Zamales Chromite Mining Company: In. v. Leido, J. 176 SCRA 602 (1989), Pos Mining Association v. Gatcia, 202 SCRA 222 (1991); United Paracale Mining Company, ine 9. De la Rosa (1993); and Manvel , Intermediate Appellate Court 243 SCRA $32 (1995). Atok Big-Wedge Mining Co. s Intermediate Appellate Court 261 SCRA $29, 5564557 (1996) tok Big Wedge did not rule on cights to minerals or mining lands hat have vested prior to the Philippine Bill af 1902. 164 JOURNAL oft integrand Bar ofthe PhilipinesWeaving Wortriow: Implant of Castntonal Chaltags tthe Idgenous Peoples Rights Act of 1997 In Director of Lands 1 Funtilar? the court reiterated that the Regalian Doctzine does not enjoy primacy. It should be related to other provisions in the Constitution ‘hus ~ “The Regalian Doctrine which forms the basis of our land laws and, in fact all laws governing natural resources is a revered and long standing principle. It must, however, be applied together with the constitutional provisions on social justice and land reform and must be interpreted in a way as to avoid manifest injustice” ‘The cases on the Regalian Doctrine cited by petitioners are not i point. Lee Hong Hok David and Atok Big-Wedge Intermediate Appellate Cott are some Of the cases favorably cited to imply the absolute application of the Regalian Doctrine. ® In their Consolidated Reply*, the petitioners also argue that Rellosa » Gaw Chee Hun “imputes to the sovereign or to the government the ownership of all lands and makes such sovereign or government the original sources of private titles.” A more responsible reading of Lee Hong Hok vs. David reveals that its ratio seadendi concerned itself with ownership of a disputed lot that was allegedly acquired through accretion, The Indigenous Peoples Rights Act does not cover rights on the basis of accretion, The issue raised in Aiok Big Wedge Mining Co. vs, Intermediate Appellate Court” was the nature of the rights of a holder of a patentable mining claim. It was not on the absolute nature of the Regalian Doctrine. Rellosan Gax Chee Hun telied on the American Jurisprudence® as its soutce of authori lis ratio had nothing to do with the nature of june regalia. Article XII Station 2 is promised on commercial exploitation - The applicability of the Regalian Docttine should be limited by the purposes for which it had been enacted. ‘The premises of natural resource management under Article XII, Section 2 and that under the second paragraph of Article XII, Section 5 are different. GR. No, L-68533, May 23, 1986 22 Paton par 62. p. 16 Consolidated Reply, Pethioners, p. 21 3 93 Phil. 827 (1993). § 48 SCRA372 (1972), Petition, pat 6.2. p. 16. 3) Ber Hermosisima, Jr, Padilla (Chairman), Belloitio, Vitug and Kapunan, 1) concurring. 261 SCRA 529 (1996). Specifically 42 Am. jut 785 which states that “In the United States, ag almost everywhere else, the doctrine which imputes tothe sovereign or government the ownership ofall lands and makes such sovereign or government ihe original sours ee ae is well recognized.” This is not historically correct even inthe United States. Am ur remains fo be a seconday reference For te US jurisdition and only persuasive forthe Philippines JOURNAL of the Integrated Bar of the Philippines 165,Waaving Worktioas: plications of Consttational Challenges 10 the Indigenous Peoples Rights lt of 1997 Jura regalia under \tticle XII, Section 2, which presupposes the possibility of managing resources separately, was designed to guard against (1) alien ownership, (2) control of a large amount of a resource by a few, and (3) regulation of latge commercial extractive ventures (logging concessions, mining companies et al) Ancestral domains, on the other hand, consider natural resources as part of an entire ecosystem. Resources are not valuable when separately considered. It is the whole ecosystem and its dynamic relationship with their occupant that provides value. “The report of the Committee on Nationalization and Preservation of Lands on the original provisions of Article XII during the Constitutional Convention that created the 1935 constitution highlighted the need for the Regalian Doctrine as protection against alien control and large-scale holdings of land. ‘The report articulated the following four fundamental principles, “(1) That land, minerals, forests, and other natural resources constitute the exclusive heritage of the Filipino Nation. They should, thetefore be preserved for those under the sovereign authority of the nation and for their posterity “(2) That the existence of big landed estates is one of the causes of economic inequality and social unrest “(3) That the multiplication of landowners by the subdivision of land into smaller holdings conducive to social peace and individual contentment and has been the policy adopted in most civilized countries after the World War. “(4) That the encouragement of ownership of small landholdings destroys that institution so deeply: entrenched in many pats of the Philippines known as caciquism. Icis preventive of absentee landlordism, an institution which springs directly from the establishment of big landed éstates and has time and again served as an irritant to the actual toilers of the soil.” ‘The dissent of Mr, Justice Feria in Mabamag » Lope, Vit? was one of the first extended opinions that recalled the reasons for the adoption of the Regalian Doctrine. Thus — “This provision of the Constitation has been criticized as establishing the outworn Regalian doctrine which, itis suggested, may serve co retatd the economic development of the Philippines. The best encomic on this provision is probably the very criticism launched agains' it. It is inconceivable that the Filipinos would liberalize the acquisition, disposition and exploitation of our natural resources to the extent of permitting their alienation ot of depriving the people of this country of their heritage. The life of any 2% Aruggo. THE FRAMING OF THE PHILIPPINE CONSTITUTION, 595 (1999). © F8PhiL (March 5. J947) 166 JOURNAL of se Integrated Bar of te Philippines; Waving Wertiins:Ipaions of Consttvtional Chalene te Ladgcans Peoples Rights tof 1997, nation depends upon its pasriony and economic resourses. Real freedom, if it is tobe lasting, nnust ge and in hand with economic security if not economic prosperity. We are at most usuftuctuaties of our domains and narural resources and have no power to alicnate them even if we should want to do so. They belong to the generations yet unborn and it would be the height of folly to even think of opening the decor for their untrammeled disposition, exploitation, development or utilization to the detriment of the Filipino people. With our narutal resources in the hands of foreigners what would be there left except the idealism of living in a country supposedly free, but where freedom is, after all, an empty dream? We would be living in a sumptuous palace that is not ouss. We would be beggars in our own homes, strangers in our own land.” (emphasis ours) Article XU, Section 2 therefore reflects not just the desire to protect-resources but also to economically profit from it. Its very formulation implies that the State views the resources not as part of an integrated ec of separate commercial exploitation em but as distinct units capable Different laws regulating the rights to extract have historically governed each of these distinct resources” Many of these laws do not even complement each other. Under these laws, the usufructuary tights or the power to enjoy, use and economically exploit all other resources, whether or not found on public or private lands, depend on the State. Even when a torrens title is successfully procured, the owners do not, by virtue of that title, gain ownership nor full control of waters™, timber products", non- timber forest resources, minerals and other resources over thei land ‘This view and approach to natural resource allocation is completely different from the perspective of indigenous peoples,” has caused them untold suffering, and precipitated generations of social conflicts in many arcas of indigenous communitis ‘The powers that were given to the DENR had been close to near absolute. ‘The privileges that could be granted continue to constitute a fertile breeding ground for abuse and corruption. SEA ma se Soest UE edule dna (Ete A Case ae ese ae A hole a oor lesa at sae MRE Firepit rca arr Sees Sakae peas oe eae 186 957 ee een ere ee ete er Tene a a a an ee ae ee aor veians EL Sees ee lt cel ee one aelapeeefec Soe ee ee ee ee i ee ee a iy L. J (1990), Gatmaytan, Augusto B., “Land Rights and Land Tenure Situation of Indigenous Peoples in the Philippines.” 5{1) PHIL. NAT. RES. L. J. 5, (1992). JOURNAL oft tetrad Bar of the Philipines 167Weaving Worldview: Implications of Constitutional Challggs to the Indigenous Peoples Rights Act of 1997 The second paragraph of Article XL, Section 5 uses a different perspective — The premises of prevailing natural resource laws contradict indigenous peoples’ communities view of their ecosystems. This was not lost on the framers of the 1987 Constitution. ‘Thus, as a statement of a goal ot principle, Article TI, Section 2: rates— “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.” ‘Then in Article XIV, Section 17, it is further reiterated and emphasized that— “The State shall recognize, respect and protect the tights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. Te shall consider these rights in the formulation of national plans and policies.” These are improvements on the single provision in the 1973 Constitution, which read—— “The State shall consider the customs, traditions, beliefs, and interes cultural communities in the formulation of state policies.” is of national ‘The choice of the term “indigenous cultural communities” and the recognition and promotion of their rights was a departure from the negative stereotypes instilled by out colonizers, These prejudices against the “cultura! minorities” and the “non-christian tribes” effectively pictured indigenous peoples then as backward and therefore incapable of reasonable resource management. The specific use of the term “indigenous cultural communities” in the Constitution was a constitutional recognition of the intricacies and complexities of culture and its continuity in defining ancestral lands and domains." Indigenous peoples’ rights to their ancestral domains are protected ~The Constitution also recognizes the special nature of the relationship of indigenous peoples to their ancestral domains. Legislative power to formally recognize the existence of these resources is found in Article XTI, Section 5 of the Constitution, which states * Sce Sponsorship Speech on the Autonomy by Commissioner Ponciano Bennagen in 3 Records ofthe Constitutional Commssion 171.1986), Scetion I], article XV, 1973 Constitution as amended See for instance exchange between Regalado, Davide and Bennagen,4 Records of the Constitutional Comm 28, 1986) during the Sceond Reading of PR. No. 533. The definition of Indigenous Peoples is further refine, challenged lw. jon, 33-34 (August section 3(h) ofthe 168 JOURNAL ofthe ltated Bar of th PhilppiesWaning Workdvews: Implications of Conshtutional Challenges othe Fudigenows Peoples Rights Act of 197 “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 exient of ancestral domain.” (emphasis ours) The discussions on the formulation of this provision reveal the following fundamental understandings.” First, that there is a difference between “ancestral lands” and “ancestral domains.” Second, that there are differences in concepts of ownership in the civil code and under customary law. Third, that neither the Regalian Doctrine nor customary kaw will be considered as the primary rule. There will be a balancing of interests to be accomplished by the State Distinction between Ancestral Land and Ancestral Domain ~The distinction between ancestral lands and ancestral domains is readily apparent from the use of different terms in the first and second paragraph of Article XII, Section 5. Itis also patent in the use of “ancestral lands” in Article XII, section 6.” The rules governing ancestral lands could be different from the rules governing ancestral domains. The first paragraph of the Constitutional provision governs ancestral lands. The second paragraph governs ancestral domains. The text of the second paragraph of the provision as well as the discussions of the Constitutional Commission indicate that ancestral domains are not public. ‘They do not require a grant from the State in order to be held by individuals, families, clans or groupings of families.” Thus the second paragraph empowers Congress to allow for the application of customary law (1) to “govern property rights or relations” and (2) to determine “the ownership and extent of ancestral domains.” It is also obvious from the discussions that ancestral domains are not simply abstract concepts but areas that also contain natural resources. Both Article XII, Section 2and the second paragraph of Article XII, Section 5 contain provisions on the character 11 There were nin (9) diffrent interventions during the period of amendments af Proposed Resolution (PR.) No. 533. This wasa companion resolution tothe proposal for the article on National Econorny and Ptr) » “The State shall apply the principles of sgravian frm or stewardship whenever applicable in accordance with lain the disposition or ucization of other natural resourees, including lands ofthe public domain under lease or concession stable Yor ancl, sib to priors, homestead gh of small setter andthe rights of genous communttes tether ancestral fands "(emphasis ou) Nove tt there wat one dissenting vote tothe aproval of he provision. Palla voted only against the second sentence plying that there was a clear sense ofthe distinct norms created for ancestral lands and ancesral domains. 4 Records of the Constttional Cormmmision 39 (August 38, 1986} JOURNAL of tle Inte Bar ofthe Philopies 169Weaving Worldions: Implications of Copstitatonal Chalomges to the Indigenone Peoples Rights Att of 1997. of natural resources. Reconciling the provisions should not just be a matter of subordinating the latter to the former. They clearly apply to different conditions Therefore: forests, waters, lands, minerals ouside ancestral domains are controlled by the State—in dmpertum as well as in dominium. ‘These are governed by Article NI, Section 2 of the Constitution. Forests, waters, lands, minerals wi#hia ancestral domains, as may be defined by Congress, ate still controlled by the state—but only in imperium These are governed by the legislative power granted under Article XII, Section 5. “Ownership” and “property relations” within Ancestral Domains are different from “ownership” and “property relations” in the Civil Cade ~'Uhe deliberations of the Constitutional Commission on the provision also clearly indicate that the concepts of “ownership” and “property relations” in ancestral domains could be governed by a law differe: from the Civil Code (Republic Act No. 386 as amended). Thus — “Me Regalado, Thank you. Madam President, may I seek some clarifications from either Commissioner Bennagen or Commissioner Davide regarding the phrase “CONGRESS. SHALL PROVIDE FOR THE APPLICABILITY OF CUSTOMARY LAWS. GOVERNING PROPERTY RIGHTS OR RELATIONS” in determining the ownership and extent of 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 the 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. J assume that there must be a certain difference in the customary Jaws and our regular ceil laws on property.” “Mr, Davide. That is exactly the reason, Madame President, why make the necessary exception fo the general law on property iclation auill leave it to Congress to (emphasis ours, This is consistent with established theoretical concepts of the nature of property. ‘There is nothing necessary or natural in any concept of ownership, even as understood within specific legal systems. Law, and therefore legal definitions of “ownership”, is a creation of culture. Tris as much a cultural as itis a historical expedient. It manifests the. current balance of political and economic interests within dominant structures in a given society: Concepts of property and therefore of ownership arise and take shape not because of any physical-material attribute of the thing being owned.” They are reflections of ike Rep. Act No. #377, Indigenous Peoples Rights Act > Chose oy. “An Approach tthe Seay of Land Tenure Stans") 170 JOURNAL of te integrated Bar of te PiippinsWeaning Workicws: Implications of Coestistional Challenges tothe Indigenonr Peoples Rights Act of 1997 human as saciations in relation to things.” In other words, specific cultures create their own sets of property relationships, Or pethaps more accurately, specific political settings within which cultures exist create theit own sets of property relationships. ‘Ihe ownership concepts in the Civil Code are, therefore, as natural as ownership concepts in the Indigenous Peoples Rights Act Unfortunately, Petitioners and Respondent NCIP have assumed that the word “ownership” carties the same meaning for all cultures.” Under the Civil Code, ownership is defined by Article 427% and 428” of our Civil Code. Ownership is understood as either “. . the independent and general power of a person over a thing for purposes recognized by law and within the limits established thereby” or “a relation in private law by virtue of which a thing pertaining to one person is completely subjected to:his will in everything not prohibited by public law or the concurrence with the rights of another” Moreover, ownership is said to have the attsibutes of jus und fnenal abutendi, disponendi et vindicand®. One therefore is said to own a piece of land when he exercises, t0 the exclusion of all others, the rights to use, enjoy its dispose of it in any manner not prohibited by law. fruits and alienate or Among indigenous, unwesternized or unhispanicized Philippine populations, there is no such concept of “ownership” or of “land”. There have been many attempts at finding common perspectives on these from among those expressed by vatious communities and ethno-linguistic groups, but the following seems to have captured most of such views, thus — “1, Ancestral domain isa sacred land area, Gods gift to a tribe or to a tribal community, the source of their life, where their ancestors lived since time immemorial, and is now claimed by...organized tribal Filipino community. “2, The boundaries are marked by mountains, rivers, trees or stones, graves and places of worship, or other signs of native’s presence. ‘See Ely, “Property and Contract in their Relation tothe Distribution of Wealth," in Cohen and Coben (eds), READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY 8 (1953). He rematked:“but what has been sald about the subservience of things 16 persons does not carry us very fa. We find this—that things exit forthe sike alpersons. we find established human ‘control aver things. But the essence af property is more than this. The essence oF property is inthe relation apong men arising fut of thei elation to things” * Comment, NCIP. par 2.32-9 36, pp. 14- 18: Consolidated Reply, par. 2.8. 2.9.2.10, p. 15+ 16 See also Consolidated Reply. par. 210. p15, ‘An. 427. “Ownership may be exereised over things or rights.” ‘Ant 428. “The Owner has the right to enjoy and dispose of the thing, without other limitations other than those established by lai. The owner has also a right of action agains the holder and possessor ofa thing in order io recover I \ I Tolentino, Civil Code afte Philippines 42 (1983) citing Filmes, Scialoja and Ruggiero "Id. att3 citing Sanche® Roman. JOURNAL of te lntigntal Bar of the Philppiner YPWeaving Workdsican: Implications of Canstttonal Challage tthe Lndgeeous Peps Rights Aut of 1 © ne (ecu Pop “3. Ancestral domain includes the forests and their products, hunting grounds and pasture lands, bodies of water and mineral resources and air spaces and all living ‘creatures like birds, animals and fishes. These natural resources are meant to be preserved because without them, the land cannot support the way of life of the tribal community which is determined to defend this land unto death as their communal inheritance, “4. Ancestral land and its natural resources cannot be sold or alienated by members or leaders of the community, but can only be used, preserving its natural resources according to the customary laws of the tribal community “5, Non-tribals in these areas should respect the customary laws, Particular arrangements with outsiders can be made only with the consensus of the entire tribal Filipino community but they can never obiain titles or portions of these lands. “6. Apportionment of these lands among natives is only of usufruct according to ancestral laws transfer of the sight to use “7. All lands—forested, alienable or disposable—that are occupied or used for the livelihood of a tribal community can be claimed as ancestral domain.” But there are still differences pres same ethnolinguistic groupings. ‘The complexity has been documented in various publications. The ethnographic evidence also shows that present day views and attitudes of indigenous peoples who have already organized so as to assert their rights to their ancestral tertitories bear striking resemblance to the findings of carlier studies conducted by anthropologists, both Filipino and foreign. sat between communities and even among the The framers of our Constitution already knew these nuances of rights and duties over various types of resources governed by customary law within specific ancestral domains Thus, they formulated the second paragraph of Article XII, Section 5. They and the Filipino people who ratified the Constitution did not depend on the simple divisions of “agricultural, forestal or timber, and mineral” thar had been sufficient for a past that did not recopnize indigenous customs and traditions. Rather, the Congress wa J to recognize these rights t0 ancestral domains. Congress did so through the Indigenous Peoples Rights Act. is empowe! Ibid, at 6970. Ching ECTE Tribal Filipino Apostolate Convention in 1990 focusing onthe claieation of he Concept of sncestal domain, Tid at 74, See for instance Carino Joana etl (eds). Dagan Ya Nan Dagan. Papers and Proceedings ofthe Fest Cordiera akiseetral Land Congress. 11-14 March 1983 Hagan Ciy- Contice Consulate Commits. 11 984), Pol Bret lane * Coping Strategies in the Boniok Highland Agro-ccosstem: The Role of Ritual. (Conilny Sais Cente, Baga 1987) Contes Studies Program, “Land Use and Ovarship snd Panlic Policy nthe Covdilea. In ndignous Peoples in ice Paka Eiipino Lecture Series Collie Papers, (1983), Paid, Zenda Hamada “Iedigeuts Patt and Use nd Public Poles n Benguet, n Dakar Ya Nan Dagamt (1984), Compare with Usrion, Roy Fs IFUGAO LANY (University of Calfornit 109) Barton, Roy F, THE KALINGAS (University of Chicago: 1949), Bennagen, Ponciono and Lucas armani CONSULTING THE SPIRITS. WORKING WITH NATURE. SHARING WITH OTHERS. (1096). Conklin Haro C. Ehnographie Ais uguo (Yale Universip: 1980), Fr, Howard, A HISTORY OF THE MOUNTAIN PROVINCE (nen Day 1988), Jenks Mlber ECTHE BONTOC IGOROT (Boren of Printing: 1905) 172 JOURNAL ofthe Inge Bar of the PhilppisesWeaning Werldsicos: Implications of Constitutional Chaleages to the Indigenous Papls Righis Act of 1997 ng ss Sections 4 and 5 of the IPRA embody this shift in perspective in the 1987 Constitution, thus — “Section 4, Concept of Ancestral Lands/Domains. — Ancestral lands /domains shall include such concepts of territories which cover not only the physizal environment but the total environment including the spiritual and cultural bonds to the areas which the ICCs/IPs possess, occupy and use and to which they have claims of ownership.” (emphasis ours) “Section 5. Indigenous Concept of Ownership — Indigenous concept of ownership substains the view that ancestral domains and all resources found therein shall sezve as material bases of their cultural integrity Article XT, Section 5 was never meant to be subordinated to Article XI, Section 2 — ‘There is ample basis to show that the provisions of Article XII, Section 2 of the Constitution do not subordinate Article XII, Section 5. ‘Three exchanges took place during the Constitutional Commission's Period of Amendments to then Proposed Resolution No. 533, on such subject.“ In none of these exchanges was there any indication of the desire to make the Regalian Doctrine absolute. In fact all of these exchanges rciterared the use of the present version of Section 5 as basis for balancing intere: That the State, through the legislature, might, at some point, recognize more Powers in favor of indigenous peoples within their ancestral domains is furthermore consistent with the two principles of subsidiarity and solidarity underlying the entire article of the Constitution on National Economy and Patrimony. Even first world countries now recognize the need to harness common property ystems Comparative developments in other nations over the past decade concerning the legal recognition of indigenous rights to land and other natural resources make clear that the TPRA is notisolated nor atypical. Rather, IPRA is very much in accord with the ongoing development of legal standards for recognizing native title and other indigenous tights in even such first world countries as Australia and Canada The High Court of Australia (HCA) has held that native title are sights “sui generis” because of the special cultural and spiritual connection of aboriginal people to ‘See 4 Records of the Constitutional Commission 34, 37 (August 28, 1986) Period of amendments ta PR. 533 JOURNAL of tr Integrated Bar ofthe Phiipiaa 173Wauing Warldienss Implication of Constitutional Challenge othe Indionows Peoples Righur Ae of 1997 their ancestral domains, ‘The primary prerequisite for gaining legal recognition of ancestral domain sights is proof of traditional and continuous connections to the area. Australian jurisprudence concerning native title emanates from the Mabo cas On June 3, 1992, the HCA upheld the claims of indigenous peoples from Murray in the ‘Torres Strait. The HCA tuled that Australia was not /erra mullins? when settled by the British in 1788. Rather, it was occupied by mainland Aboriginal and ‘Torres Strait Islander people who had their own laws and customs and whose “native ttle” to land survived the Crown's annexation of Australia.® ‘The position of the HCA in the first Mabo case was reaffirmed in another Mabo case. ‘The later case held that section 10 of Australia’s Federal Racial Discrimination Act of 1975 constitutes a Federal “safety net” agaisnt State or Territory legislation that would otherwise extinguish native tile rights.” Australia’s Native Title Act (NTA) of 1993 came into effect on January 1, 1994. “This legislation was the direct result of the aforementioned decisions and provided the first nationally valid mechanism to clarify native title claims, ‘The NYA established a National Native Title Tribunal (NNTT) similar to the National Commission on Indigenous Peoples (NCIP) created by IPRA. Te also validated state laws that provided for recognition of native title. Procedures and standards for Furure native title agreements were introduced. A Land Fund was also established for those indigenous peoples who cannot take advantage of the NTA. Pursuant to the NTA, a diverse array of negotiated Native ‘Title Agreements and Land Use and Resource Agreements exist in Australia today. ‘The Canadian Constitution Act of 1982 on the other hand recognizes “aboriginal and treaty tights” in section 35. Tts “Charter of Rights and Freedoms” also contains -veral sections regarding indigenous rights. Even before the Constitution Act of 1982 was promulgated, and twenty years before the HCAs Mabo decision, the Supreme Court of Canada (SCC) issued its famous Calder decision.” In Calder, the SCC eecogaized for the first time the continuous existence of ‘an “aboriginal (Indian) title.” ‘The case Empty territory helonging to no one. SS Mabo v. Queensland (No.2) 175 CLR 1 (1992) abe Quccnstand (No.3) 173 CLR 88 (1952). In a 1996 decision, Wik Peoples v. Queensland, 187 CLR 1. the HCA.also Aetermined that nate es ean coos and overap wih pastoral cases ‘This applied to thosethat have lost thei traditional connections because of involuntary removal © Calder, The Queen, 34 DER (34) 145 (1973). ATA JOURNAL ft lated Bar of te Pipes/ Weaving Worldiews: Implications of Constitutional Chalknges to the Indigenous Peoples Rights Act of 1997 otiginated in the province of British Columbia where no treaties with any First Nations” existed.” These are only some of the ways in which indigenous rights worldwide have been recognized IPRA will not mean that the entire country will be controlled by Indigenous peoples ~1PRA does not replace the premises of the Regalian Doctrine in areas not occupied or used by these indigenous peoples’ communities. It is in such areas where the motive for individual profit is left unchecked by non-official customs or other social institutions ‘The State should continue to own as well as regulate the use of these resources On the other hand, IPRA does not pretend to give absolute control to indigenous peoples over all resources within areas occupied or used by them. For certainly, the Police Power of the State could govern the recognition of the tights from domains which have neither been full public open access nor entirely individual. The police power of the State is seen in the very provisions challenged by the Petitioner ‘The fears expressed by the Petitioner could best be addressed by a more genuine attempt to understand the systems prevailing within ancestral domains, rather than by snaking conclusions based on hysteria, stereotypes and acculturated prejudice. ‘They could also be addressed by examining the provisions of the very law that is being attacked. ‘The fear that indigenous peoples will claim all of the territory of the Philippines’? is best addressed by understanding that indigenous peoples must have a continuous history, culture and possession over the ancestral domains that they claim. ‘The definition of ancestral domains and indigenous peoples” as well as the proce: the law, provide conditions for achieving such continuity. of delineation in The fear that indigenous peoples will create different “Republics” within their ancestral domains is best answered by such provisions in IPRA as the recognition of Indigenous groups in Canada "Further SCC deetsions expanded on Calder’s recognition of abo v. Sparrow, 1 SCR 1075 (1990), Petition. par 4.9. p. LT Section 3(a),(h), Rep. Act No, 8371, Definitions of Ancestral Domains and Indigenous Peoples Sections 51. 52, 53, Rep. Act No, 8371, Delineation processes of ancestial lands and domains nal rights. See Guerin v. The Queen, 2 SCR 335 (1984) and R JOURNAL of tie Inge taro he Phiipies 175Weaving Weorlteions: Lmpliations of Consitational Chalkages the Indigenous Peoples Rights Act of 1297 the power of eminent domain”, the determination of common and public welfare in cases of overlapping claims to reservations” , and the compromise on watersheds.” The Constitution can bear an interpretation which is not repugnant to the needs of the times — ‘The Constitution can bear an interpretation that creates space for these new perspectives and imperatives of natural resource management to be recognized in law. ‘This discussion is not meant to impose a particular theory of natural resource management. It however clearly demonstrates that the IPRA is neither totally unreasonable nor enacted simply for the benefit of a select few, as argued by the Petitioners. ‘The inability of old antiquated approaches at resource management systems to meet issues of poverty and ecological disasters within ancestral domains led both Congress and the President’ to enact Republic Act No. 8371 ‘There is no clear contradiction between the provisions in the IPRA challenged by the Petitioners and the Constitution, At the very least, a high premium on the presumption of its constitutionality should be accorded. 2, WHETHER OR NOY IPRA DEPRIVES OTHER INTERESTED PARTIES DUE PROCESS The challenged provisions of IPRA do not inclade lands held by others within the purview of Ancestral Lands and Domains — Petitioners further argue that the IPRA will deprive private Property tights owners of their property without due process of law. Before an area can be declared by the National Comrission on Indigenous Peoples (NCIP) as being part of an ancestral domain or ancestral land, a lengthy process that involves all the stakeholders in the are being claimed must first be observed During, this process, private owners included within the area claimed have the right to be notified of the application. ‘They are protected by Section 56 of the law. They also have the right to file their oppositions and are give every opportunity to be heard. ‘The “cardinal primary rights” for procedural due proc process for the identification and delineation of anci ” are present in the sttal domains outlined in Section Section 7 (6) Rep. A No, 8871. Right uo Stay in Terrionen, Section 7 (s). Rep. Act No. 8371 Right to Claim pats of Reservations Scation $8. Rep. Ac No, 4371, Environmental Considerations Seealso ENee Ord. No, 263 (1996). This Executive Order proclaims that Community Based Resource Management Systems are given print * Ang Tibay v- Court of Industrial Relations. 69 Phil. 635 (1940), 176 JOURNAL le Ieeqratat Bar of the PhipponesWeaving Worttioes: Ipiations of Cansttutional Chalenges to the Indgynons Pople: Rights Act of 1997 52 of the challenged statute. The processes of identification and delineation of ancestral lands are contained in Section 53. ‘These processes involve the filing of a petition, investigation, publication and posting, and a period for considering oppositions to the grant of the certificates. Recognizing ancestral lands within ancestral domains likewise follows a very transparent procedure. Once an ancestral domain has been certified, the allocation of ancestral lands within such domain to individual, family or clan claimants of the ICC/IP concerned will be made in accordance with the ICC/IP community's customs and traditions." Such individual, family or clan claimants need no longer acquire a Cestificate of Ancestral Land Title or CAL from the NCIP over their ancestral land claims that lie within their community’s ancestral domain In the process of delineation, any conflict arising from any opposition to the application are resolved using the following procedure: (1) The Ancestral Domains Office (ADO) first calls the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict; (2) In the event that no preliminary resolution of the conflict is made, the NCIP hears and decides the dispute after providing notice to the parties."* However, if the parties are both [CCs/IPs and the subject involves traditional boundaries of their ancestral domains, customary process should be followed." This implies that if the parties involve a non-ICC/IP and an ICC/IP, the conflict will be heard and decided by the NCIP according to its rules of procedure. In its absence, the process of administrative adjudication specified in the Administrative Code of 1987 will be followed.! (3) The 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 the IPRA may be appealed to the Court of Appeals. ‘The remedy would be a Petition Rep Act No. $371, see $3 (a). Rep Act No, #371. see 52(h) and see $340) Rep. Act No. 8371, sec 62 oid ™ Book VIL, Chapter 3. Executive Order No. 292 (1987), JOURNAL of te Deal Bar ofthe Phipines 17Weaving Worlds: Implications of Contintonal Challeges to the Indigenous Paps Rights Ait of 1997 for Review that should be filed within fifteen (15) days from receipt by the appellant of a copy of such decision,” ‘The IPRA does not provide for blanket nor automatic cancellation of titles to Privately owned lands in favor of their inclusion in ancestral domains or ancestral lands. ‘The power of the NCIP to effect the cancellation of officially documented titles to land is restricted by the following limitations: (a) The holders must have illegally acquired the documents of title: (b) The cancellation can only be effected through “appropriate legal action”; (©) Despite the action for cancellation, the sights of possessors in good faith will be respected; and (4) The action for cancellation may be initiated only within two (2) years from the effectivity of the IPRA — or until 23 November 1999.13 In addition to such procedural safeguards, Section 56 of IPRA substantively provides: “Property rights within ancestral domains alze -xisting and /or vested upon effectivity Of this Act, shall be recognized and respected.” The challenged provisions of the IPRA which recognize the use of customary Taw for the settlement of disputes on property rights do not violate due process of law Petitioners fear that “a non-member of an ICC/IP who has a dispute with an ICC/IP will have his case decided solely by members of ICCs/IPs/.""'They add that “a non-member of an ICC/IP who must defend his case against an ICC/TP member before judges who are all members of ICCs/IPs cannot buit harbor a suspicion that they do not have the cold neutrality of an impartial judge”? Shorn of its legalese, the argument simply states that Tagalogs, Hocanos, Warays, Cebuanos cannot trust Manobos, Bagobos, Ibalois and other indigenous peoples judges. 6 id ' Petition, par. 6.21, p24 17 Petition. par. 6.22: p24, underscoring by Petitioners. Per Malcolm “" Per Malcolm. Rubi v. Provincial Board of Mindoro, 39 Phil 60 1919) 178 JOURNAL of she Integrated Bar of ibe PhiipprssWeaving Worldeiows: Implications of Contiutional Challenges tothe Indienons Peoples Rights Act of 1997 This mistrust is not based upon any concrete behavior of those that would resolve disputes. It is not also based upon any established relationship between any of those involved in the dispute and the mediator/ arbitrator / judge. ‘The only basis for the mistrust is that they are indigenous peoples. It is based on ethnicity and the fact that they belong to a different culture. On a wholesale basis, Petitioners would have the Supreme Court disqualify indigenous peoples from deciding disputes simply on the basis of their ethnicity ‘This is prejudice pure and simple. It plays to a stereotype thar has long been swept away through the provisions of Article XII, Section 22 of the Constitution. Time was when indigenous peoples were referred to as “backward” and as “natives of the Philippine Islands of a low grade of civilization’"™, that they were peoples who were needful of protection and could not be trusted because of the accident of their lineage and birth.” ‘This is a prejudice that the Constitution has done away with and for which IPRA has been enacted. In order to find prejudice sufficient to render proceedings unconstitutional, the requirement now is that there must be a finding of specific and undue partiality. It is not sufficient that there be only some speculation that there will be prejudgment. Thus, in Webb » People, speaking on the prejudice that might be caused by undue publicity, the Supreme Court noted: “Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his de process right to fair tal. Thus in Martelino, et al. V. Alejandro, et al, we held that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been tunduly influenced, ‘ot simply that they might be, by the barage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of Petitioners fatally infected the fairness and impartiality of the DO} Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of faimess of the DOJ Panel, for these are basically unbeknown and beyond knowing...” People v, Cayat, per Moran, 68 Phil. 12 (1939). 247 SCRA 653, 692 (1995) per Puno J, Regalado, Narvasa, Mendoza, Francisco concur. 247 SCRA 653, 692 (1995) eting Martelino v: Algjandro, 32 SCRA 106 (1970) 181-247 SCRA 633, 692 (1995) citing Martelino v. Alejandro, 32 SCRA 1061970) JOURNAL of te tntegited Bar of he Philppones YI9Weaving Workdiaes: Implications of Constittional Chalenges tthe Indigenous Pople Rights Aud of 1997 Also, the use of customary law is not new. Our laws have acceded to its existence. It has been in our statute books ever since the New Civil Code''*. The Local Government Code'"’ has recognized the use of indigenous processes for dispute resolution in areas inhabited by indigenous peoples. The Supzeme Court has, on occasion, also recognized the difficulties caused by the dichotomies of customary law and the official national legal system. ‘Thus, for instance, then Chief Justice Fernan in Pitag n Peoplt, acquitted the accused for a charge of theft on the basis of the application of the concept of “tayan” ownership prevalent in the Cordilleras. The Court then observed “These disparities, however, gain significance under the peculiar circumstances of this case. The case involved was communal before the sale to Edward Pasiteng, being co- owned by the members of the fomajan, Anyone, including non members of the feranian, could build a house thereon.” ‘Then with all the other Justices concurring, the Court said — “We see this case as exemplifying a clash between a claim of ownership founded ‘on customs and tradition and another such claim supported by written evidence but nonetheless based on the same customs and tradition. When a court is beset with this kind of case, where the accused, an illiterate tribeswoman who cannot be expected to resort to written evidence of ownership, stands to lose het liberty on account of an oversight in the court's appreciation of the evidence.” " What IPRA now provides is a more transparent interface between laws which have been existing in our indigenous communities and the norms that have found their way into our official national legal system. By doing so, it has provided for processes of resolving disputes which may not be in accord with the westernized systems that others have grown accustomed with, ‘The rules contained in our statute books may be the law that many people in Cebu, Baguio, Manila or Davao City are comfortable with. But this has not been the case with the occupants of various Kalinga ii, ot a B’laan sakuf"* or other indigenous communities, For centuries, indigenous peoples have endured the proceedings in our courts and accepted the alien procedures and metaphors that we use. There are grumblings © Rep Act No. 386 as amended, article 11 and 12. 9 Rep Act No. 7160 (1991), sec. 399 (0), “In barangays where majority ofthe inhsbitants are members of indigenous cultural communities, local systems of setting disputes through their counels of datas o elders shal be recognized without prcjuics (0 the applicable provisions ofthis Code "+ Pitog y. people, GR 765399, Qctaber 11, 1990, "5 community "We Gonstituents ofa f"tong (dats) 180 JOURNAL of the Integrated Bar of the P! ippinesWaning Words: Lnpsons of Contatinal Chale to the Vans eles Rights At of 1997 that the incumbents in various salas do not understand the differences in theit cultures. But they have still participated in our court systems. Never had they, as the Petitioners have done, implied that the ethnicity of the incumbent judges or justices could per se cloud their capacity to be human and impartial. To strike dowa this law simply because it starts to recognize systems — norms closer to many of our peoples than those embodied in other statutes — that have be in place since time immemorial, is not consistent with Article HI, Section 22 of the Constitution. POSTSCRIPT!” The enactment of Republic Act 8371 or the Indigenous Peoples Rights Act (IPRA) in 1997 was a product of a century old struggle of indigenous peoples for recognition of their ownership of their ancestral domain. In the words of Justice Puno, “the IPRA was enacted by Congress not only to fulfill the coastitutional mandate of protecting the indigenous cultural communities’ right to their ancest-al land but more importantly, to correct a grave historical injustice to our indigenous people.” IPRA recognizes fundamental rights of indigenous peoples, particularly, the right to their ancestral domains/lands', the right to sclf-governance™, the tight to cultural integrity", and other human tights". The filing of a petition in the Supreme Court to have IPRA declared unconstitutional portended a major setback to the struggle not only because it placed doubt on the constitutionality of the law but, more significantly, because the petition placed the full implementation of the law on hold. For while the Supreme Court never '"” This postscript was, by wey of updating the article as appearing in this Journal, writicn by Atty. Ingvid Rosalie Gurve, the OIC ‘Team Leader of the Research and Policy Development Team ofthe Legal Righis and Natural Resources Center, "Isagani Cruz and Cesar Europa vs. NCIP et.al, GINO, 13$385., December 6, 2000, ' Chapter 3, RA 8371, Indigenous Peoples Rights Act sh Chap 4 " Chapter 6, id 2 Chapter 8, id JOURNAL of ie Inert Bar of he Philipines 181Weaving Workdrews: Ipatons of Constitutional Chale to the Indigenous Prples Rights Act of 1997 issued any order restraining the implementation of the IPRA, its implementation was de fatto sestsained.!” On December 6, 2000, three years after the enactment of the law, the Supreme Court, in a per curiam decision, declared the law constitutional. Seven justices voted to grant the petition while another seven voted to dismiss it'™* Justice Kapunan, together with the Chief Justice, Justices Bellosillo, Quisumbing and Santiago, sustained the validity of the challenged provisions of the IPRA, Justice Puno also filed 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 Implementing the IPRA, and Section 57 of the IPRA. Justice Mendoza voted to dismiss the petition on procedural grounds. Seven (7) other Justice voted to grant the petition. Justice Panganiban dissented and was of the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and selated provisions of R.A, 8371 are unconstitutional, Justice Vitug likewise dissented and was of the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon joined in the separate opinions of Justices Panganiban and Vitug, ‘There was no clear ruling on the various issues raised by both Petitioners and Intervenors. The dismissal was mainly based on the lack of a necessary majority required to declare a law unconstitutional. It is not unlikely that another case may be filed in which the Supreme Court may rule more decisively, and hopefully for the benefit of Philippine indigenous peoples. ‘The dismissal of the case did not mean that the struggles of indigenous peoples ended, Recognition of the ancestral domain rights of indigenous peoples has proceeded at a snail’s pace, Based on the latest data from the NCIP, only “70,000 hectares or about 1.4% of the total estimated ancestral domain area are covered by CADTS”."* The total remaining area covered by Certificate of Ancestral Domain Certificates” (CADC) for The Department of Environment and Natural Resouces, fr example, explained thal their inaction was to avoiga legal jugeernaut involving millions of pesosto undo the claims and titles” if PRA\s declared unconstitutional, Ballesteros (ed), A Divided Cour: Case Materials from the Constitutional Challenge (o the Indigenous Peoples Righis Act of 1997, Legal Rights and Natural Resources Center-Kasaina sa Kalikasan) citing the Slatement of Assistant Secretary Paula Defensor, DENR Press Release. July 24, 2000 at 2 Cruz vs, NCIP, 3. od ‘3 NCIP Date, 2003, cited in the Medium-Tecm Philippine Development Plan for Indigenous Peoples for 2004-2008, © Centificate of Ancesizal Domain Certificates (CADCs) were issued by the Department of Environment and Natural Resources under Department Administrative Order No. 2, Series of 1993. IPRA recognized the CADCS and provided for a procedure for conversion of the CADCS into & Certificate of Ancestral Domain Title (CAL), 182 JOURNAL te Inada of te PilpiesWasi Worse: mpatins of Cashion Challe the Indgonns ars Ris Act of 1997 “conversion into Cextificate of Ancestral Domain Titles (CADT) is 2,530,366 hectares while the area of ancestral domain for direct titling is estimated at 2,500,000 hectares. Budgetary and other technical constraints have prevented an expedient way of recognizing the ancestral domain titles of indigenous peoples. Hor example, the estimated budget for the titling of the CADCs and the new direct applications is around Php 287,000,000." As of July 2003, only eleven CADTs haye been approved covering a total area of 367,440 hectares.” ‘The continued failure to implement the IPRA and consequent lack of recognition of the ancestral domain tights of indigenous peoples is a growing concern from a human rights standpoint, In the report of the United Nations Special Rapporteur on Indigenous Peoples on his visit to the Philippines, concern was expressed over the “serious human rights issues related to the lack of the effective implementation of the IPRA? “Ror poor indigenous farming communities crucial land rights are addressed by filing legal claims to their own ancestral domains and titles. ‘The process is cumbersome and. indigenous representatives perceive that the business interests of private enterprises, which over the years have encroached upon their ancestral domains, are more protected than their own rights based on land use and continuous occupation. High poverty rates and the lack of basic social services force many indigenous people to migrate to poor turban areas where the situation of women and children is of particular concern The ment of IPRA also did not mean that violations of indigenous peoples’ ~ human tights ended. Numerous such violations have been reported in the last few years. The UN Special Rapporteur for Indigenous Peoples also indicated his concern “about multiple reports of serious human sights violations involving indigenous peop! within the framework of a process of militarization of indigenous areas. Such abuses include attacks upon the physical integrity and security of indigenous persons, dispossession and destruction of property, forced evacuation and relocation, threats and harassment, disruption of the cultural and social life of the community, in other ‘words, the violation of civic, economic, social and cultural rights. xxx ‘The frequent occurrence of human rights violations is a typical negative effect experienced by Philippine indigenous peoples, especially in connection with the promotion of various economic development projects, including dams, mining, logging and D8 NCIP Data, 2003, id. be Report ofthe Special ro the itation of hunan sighs and fundamen redo of ngenus people Me. Rely Stuvennagen, submitted in accordance with Commission on Human Rights, Addendum, Misssion to the Philippines. E/CN.A/ 2003/90/Add.3 (5 March 2003). mid JOURNAL of sis’ ARBWeaning Warts: Implications of Constitutional Challnge t the Indgpuous Poles Rights Act of 1997 commercial plantations, Such effect upon the livelihood and lifestyles of indigenous peoples are aptly described as “development aggression”. ‘The implementation of the Indigenous Peoples Rights Act is not only about recognition of rights to ancestral domain of the indigénous peoples. It is also about ensuring that indigenous peoples, just like their lowland counterparts, enjoy the sights that pertain to them as human beings.