ENVIRONMENT AND NATURAL RESOURCES LAW LAW
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MINING ACT OF 1995 (R.A. 7942) IDIGENOUS PEOPLES RIGHTS ACT OF 1997 or IPRA (R.A. 8371) ENVIRONMENTAL IMPACT STATEMENT (EIS) SYSTEM (P.D. 1586)
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Exploration, exploitation and development shall be under the full control of the State. Occupation, no matter how long will not ripen intotitle. The presumption is that all lands belong to the state. Exception – Exception – Agricultural Agricultural Lands of the Public Domain [reclassified as alienable and disposable
> Generally, under this concept, private title to land must be traced
JURISPRUDENCE -
LA BUGAL B’LAAN vs. SEC. OF DENR CRUZ vs. NCIP
to some grant, express or implied, from the Spanish Crown or its successors, the American Colonial Government, and thereafter, the Philippine
Republic
> In a broad sense, the term refers to royal rights, or those rights to
DEFINITION OF TERMS
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Indigenous Cultural Community/ Indigenous People- refer to a group of people or homogenous societies identified by self-ascription and ascription by other, who have continuously lived as organized community or communal bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed customs, tradition and other distinctive cultural traits, or who have, through resistance to political, and cultural inroads of colonization, non -indigenous religion and culture, become historically differentiated from the majority of Filipinos. MPSA(Mineral Production Sharing Agreement)- the government grants the contractor the exclusive right to conduct mining operations within within the contract area and share in the gross output. CADT(Certificate of Ancestral Domain Title)- refers to the title formally recognizing the rights and ownership of ICCs/IPs over their ancestral domain identified and delineated in accordance with this law. NCIP(National Commission on Indigenous People)refers to the office created under Republic Act No. 8371, which shall be under the Office of the President, and which shall be the primary government agency responsible for the formulation and implementation of policies, plans, programs to recognize, protect and promote the right of ICCs/IPs. Joint Venture Agreement- is an agreement where a joint-venture company is organized organized by the government and the contractor with both parties having equity shares
Regalian Doctrine (Art. XI. National Economy and
which the King has by virtue of his prerogatives > The theory of jure regalia was therefore nothing more than a natural fruit of conquest
CONNECTED A. DOMINUUM
TO
THIS
IS
THE
STATE’S
POWER
OF
> Capacity of the state to own or acquire property— property—foundation for the early Spanish decree embracing the feudal theory of jura regalia > This concept was first introduced through the Laws of the Indies and the Royal Cedulas > The Philippines passed to Spain by virtue of discovery and conquest. Consequently, all lands became the exclusive patrimony and dominion of the Spanish Crown. > The Law of the Indies was followed by the Ley Hipotecaria or the Mortgage Law of 1893. This law provided for the systematic registration of titles and deeds as well as possessory claims > The Maura Law: was partly an amendment and was the last Spanish land law promulgated in the Philippines, which required the adjustment or registration of all agricultural lands, otherwise the lands shall revert to the State
B. TAKE NOTE THAT THE REGALIAN DOCTRINE IS ENSHRINED IN OUR PRESENT AND PAST CONSTITUTIONS THE 1987 CONSTITUTION PROVIDES UNDER NATIONAL ECONOMY AND PATRIMONY THE FOLLOWING— > “ Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
Patrimony)
fisheries, forests or timber, wildlife, flora and fauna, and other
all lands of the public domain, etc… belong to the state. [Sec. 2, XII]
agricultural lands, all other natural resources shall not be alienated.
natural resources are owned by the State. With the exception of The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State
may directly undertake such activities, or it may enter into co-
petroleum and other mineral oils, all forces of potential energy,
production, joint venture, or production-sharing agreements with fisheries, wildlife, and other natural resources of the Philippines Filipino citizens, or corporations or associations at least sixty per belong to the State. With the exception of agricultural, industrial or centum of whose capital is owned by such citizens. Such agreements
commercial, residential, or resettlement lands of the public domain,
may be for a period not exceeding twenty-five years, renewable for natural resources shall not be alienated, and no license, concession, not more than twenty-five years, and under such terms and
or lease for the exploration, or utilization of any of the natural
conditions as may be provided by law. In cases of water rights for resources shall be granted for a period exceeding twenty five years, irrigation, water supply fisheries, or industrial uses other than the
except as to water rights for irrigation, water supply, fisheries, or
development of water power, beneficial use may be the measure
industrial uses other than development of water power, in which
and limit of the grant.”
cases, beneficial use may by the measure and the limit of the grant.
> The abovementioned provision provides that except for agricultural lands for public domain which alone may be alienated, ***THE REGALIAN DOCTRINE DOESN'T NEGATE NATIVE TITLE. THIS forest or timber, and mineral lands, as well as all other natural IS IN PURSUANCE TO WHAT HAS BEEN HELD IN CRUZ V. SECRETARY resources must remain with the State, the exploration, development and utilization of which shall be subject to its full control and supervision albeit allowing it to enter into coproduction, joint venture or production-sharing agreements, or into agreements with foreign-owned
corporations
involving
technical
or
financial
assistance for large-scale exploration, development, and utilization
OF ENVIRONMENT AND NATURAL RESOURCES FACTS> Petitioners challenged the constitutionality of Indigenous Peoples Rights Act on the ground that it amounts to an unlawful deprivation of the State’s ownership over lands of the public domain and all other natural resources therein, by recognizing the right of ownership of ICC or IPs to their ancestral domains and ancestral lands
on
the
basis
of
native
title.
HELD> As the votes were equally divided, the necessary majority
C. THE 1987 PROVISION HAD ITS ROOTS IN THE 1935 CONSTITUTION
wasn’t obtained and petition was dismissed and the law’s validity was upheld
WHICH PROVIDES— > Section 1. All agricultural timber, and mineral lands of the public
> Justice Kapunan: Regalian theory doesn’t negate the native title to domain, waters, minerals, coal, petroleum, and other mineral oils, lands held in private ownership since time immemorial, adverting to all forces of potential energy and other natural resources of the the landmark case of CARINO V. LOCAL GOVERNMENT, where the Philippines belong to the State, and their disposition, exploitation, US SC through Holmes held: “xxx the land has been held by development, or utilization shall be limited to citizens of the individuals under a claim of private ownership, it will be presumed Philippines or to corporations or associations at least sixty per to have been held in the same way from before the Spanish centum of the capital of which is owned by such citizens, subject to
conquest, and never to have been public land.”
any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution. > Existence of native title to land, or ownership of land by Filipinos Natural resources, with the exception of public agricultural land, by virtue of possession under a claim of ownership since time shall not be alienated, and no license, concession, or lease for the immemorial and independent of any grant from the Spanish crown exploitation, development, or utilization of any of the natural
as an exception to the theory of jure regalia
resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for
irrigation,
water
supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and limit of the grant.
> Justice Puno: Carino case firmly established a concept of private land title that existed irrespective of any royal grant from the State and was based on the strong mandate extended to the Islands via the Philippine Bill of 1902. The IPRA recognizes the existence of ICCs/IPs as a distinct sector in the society. It grants this people the ownership and possession of their ancestral domains and ancestral
D. THE 1973 CONSTITUTION REITERATED THE REGALIAN DOCTRINE Section8. All lands of public domain, waters, minerals, coal,
lands and defines the extent of these lands and domains
Holmes, who spoke for the Court, said that in practice sovereignty > Justice Vitug: Carino cannot override the collective will of the may vary in degree. “How far a new sovereign shall insist upon the people expressed in the Constitution.
theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts, are matters for it to decide.”
> Justice Panganiban: all Filipinos, whether indigenous or not, are
The Igorots were never brought under the control of the Spaniards.
subject to the Constitution, and that no one is exempt from its
The Court quipped that it would be almost certain that Spain would
allencompassing provisions
not have granted registration of the property that would not have made title valid. Regardless of Spain’s position about technical subtleties, this did not mean that under the dominion of the United
CARIÑO V. INSULAR GOVERNMENT FACTS: The applicant and plaintiff in error is an Igorot of the Province of Benguet, where the land lies. For more than fifty years before the Treaty of Paris, April 11, 1989 (30 Stat. At L., 1754), as far back as the findings go, the plaintiff and his ancestors had held the land as owners. His grandfather had lived upon it, and had maintained fences efficient for the holding of cattle, according to the custom of the country, with some of the fences, it seems, having been of much earlier date. His father had cultivated parts and had used parts for pasturing cattle, and he had used it as a pasture in his turn. They all had been recognized as owners by the Igorots, and he had inherited or received the land from his father, in accordance with Igorot custom. No document of title, however, had been issued from the Spanish Crown, and although, in 1893-1894, and again in 1869-1879, he applied for one under the royal decrees then in force, nothing seems to have come of it, unless perhaps, information that lands in Benguet could not be conceded until those to be occupied for sanitarium, etc., had been designated-a purpose carried out by the Philippine government and the United States. In 1901 the plaintiff filed a petition, alleging ownership, under the mortgage law, and the lands were registered to him, that process, establishing only a possessory title, it said. ISSUE: The issue according to Justice Holmes was whether the claimant, an Igorot, owned the land. HELD: The United States government contented that Spain had title to all the lands in the Philippines, except so far as it saw fit to permit private titles to be acquired. It maintained that no prescription can be claimed against Spanish empire and even if that was possible, a decree in 1880 had set a deadline for the registration of these titles. No title would be recognized as valid beyond that date. Since the land in question was not registered, the government contended that it had become public (if it was already public). When the United States succeeded to the title of Spain, Cariño had no right which it was bound to respect. The Court disagreed with the United States in a decision that has remained as obscure as it is significant. The Court admitted that Spain had embraced the universal feudal theory that all lands were held by the Crown. However, Justice
States, Cariño had lost all his rights. He was not a mere trespasser when the government succeeded as the new sovereign. A contrary position, would “amount to denial of native titles throughout an important part of the Island of Luzon, at least for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce.” The Court explained that the cases involving the land claims of Native Americans were inapplicable in this situation because the acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land. Evidently, however stated, the reason for our taking over the Philippines was different. No one, we suppose would deny that, so far consistent with paramount necessities, our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the Organic Act of July 1, 1902… all the property and rights acquired there by the United States are to be administered “for the benefit of t he inhabitants thereof.” In the Court’s view, the United States had bound itself to administer the islands for the benefit of the inhabitants, and not to exploit it for profit. However, the decision did not stop there. It pointed out that the Philippine Bill of 1902 included a Bill of rights that extended those safeguards to all the inhabitants of the Philippines. The Court found it hard to believe that the United States interpreted the due process clause not to apply to the inhabitants of Benguet. The “property” under the organic act protected “only that which had become such by ceremonies of which presumably a large part of the inhabitants never heard, and that it proposed to treat as public land what they, by native custom and by long association – one of the profoundest factors in human thought-regarded as their own.” While the government of the Philippines was empowered to enact rules for perfecting titles to public lands and to issue patents to natives, the Court held that this power was confined to lands which were admittedly public. It “had not continued for such a length of time and under such circumstances as to give rise to the understanding that the occupants were owners.” The Court refused to believe that there was an intent to declare every native who had
not a paper title a trespasser. This set the claims of all the wilder In the following portion of the paper, we analyze the Court’s tribes afloat. The Court further held that there must be a
decision.
presumption against the government when a private individual claims property as his or her own. It went so far as to say that the Cariño did not rely on precedent. Justice Holmes said that whatever lands will be deemed private absent contrary proof. In what is theories justified claims over “discovered” lands, the truth was that probably the most potent statement ever made on this subject by conquerors were never able to see, much less secure most of these areas. The fact that the Igorots had never been assimilated or any Court, it held: defeated by the Spaniards must surely have been a substantial Whatever the law upon these points may be…every presumption is consideration. The court said that title will not be extinguished and ought to be against the government in a case like the present. It simply because a territory is occupied by an alien force. might be proper and sufficient to say that when as far back as testimony or memory goes, the land has been held by individuals Holmes’s language stripped the veneer of nobility that has often under a claim of private ownership, i t will be presumed to have been been used to justify the dispossession of the Native Americans. The held in the same way even before Spanish conquest, and never to
experience in America was exposed as nothing more than an
have been public land.
ignoble, colossal capitalist venture meant to take lands at the Indians’ expense. Cariño made no explicit reference here to either
The Court proceeded to explain that the case would have been
superior culture or religion.
similarly resolved had the case tried by the laws of Spain. After examining the pertinent laws, the Court held that We do not
The Court then noted the second obstacles to the United States’
discover such clear proof that it was bad by that [Spanish] law as to
claim: the United States had not asserted a claim over the entire
satisfy us that he does not own the land. To begin with, the older
country. When Congress enacted the Philippine bill of 1902, it
decrees and laws cited by the counsel for the plaintiff in error seem extended the Bill of Rights to the territory. The United States had to suggest pretty clearly that the natives were recognized as owing stretched its protection, particularly the due process clause, to all some lands, irrespective of any royal grant. In other words, Spain did
the inhabitants of the Philippines. Ata this point, the Court had
not assume to convert all the native inhabitants of the Philippines
already characterized the ancestral domain of the Igorots (and by
into trespassers or even tenants at will.
extension, those of other native peoples) as private. It should be noted that the property here was private not because of recognition
The Court pointed out that the Recopilacion de Leyes de Las
of title by any sovereign. This was the result of the Igorots’ “custom
Indias (that body of edicts, decrees and orders that set out Spain’s
and long association” and “practice and belief.”
laws for her colonies) allowed confirmation of title through prescription, and that title was admitted to exist that owed nothing
The Court also mocked Spain’s claims over the entire territory of the
to the power of Spain beyond this recognition in their books. The
Philippines. Such claims could not defeat the claim of Cariño based
Court further explained that Spanish law was not that stringent in
on laws that Spain had not the power to enforce, or Cariño, living as
requiring proof, ancient possession being sufficient.
he did with his unconquered folk, had no reason to heed. The resolution of the case was guided more by the Court’s
“As prescription, even against Crown lands, was recognized by the
determination to do justice rather than to apply obscure laws. This
laws of Spain, we see no sufficient reason for hesitating to admit the
explains Holmes’ refusal to rely upon established doctrines and his
title was recognized in the Philippines in regard to lands over which
liberal interpretation of the Philippine Bill. No weight was ever
Spain had only a paper sovereignty.”
placed upon theories of conquest or alien laws that could not have been known to or understood by a people so removed from the
Clearly, the reference to Spanish law was inconsequential. Justice
potentates’ game of global takeover. Thus, unlike in North America, Holmes discussed the issue only to clarify that Cariño’s claim would the Court refused to deprive the Indian of his rights by resorting to have also prevailed, (this time under prescription) had the Court the laws of nations within the exclusive sphere of a mere handful of resorted to Spanish laws. This part of the discussion was surplusage
nations. It would not construe laws to deny the Igorots’ claim, and
because the lands claimed by Cariño were already held to be private. the executive and legislative acts in any way that “would amount to a denial of native titles.” In concluding, Holmes wrote that “law and justice require that the applicant should be granted what he seeks, and should not be
It might be suggested that there is a difference between the claims deprived of what, by the practice and belief of those among whom in Cariño and those of the North American Indians because the he lived, was his property, through a refined interpretation of an former involved the assertion of an individual’s private right almost forgotten law of Spain.”
consistent with western property schemes against those asserted by
an entire community. But there is no evidence of this difference in of the Secretary of the Interior. The Government, having given the Holmes’ language.
Indian his land without cost, it had a perfect right to impose such condition upon the disposition of the same as the Government
Neither can the differences in the result can be justified on the might deem wise. In the Philippine Islands, however, the nonground that the Court viewed the claimants as a “civilized” Christian people have never been given land by the government. westernized people. The claimants in Cariño were also considered They are therefore under no obligation to the Government inferior peoples, if subtly. The court made conscious efforts to waive
concerning the land they acquire.
technicalities because the claimants were Igorots, and were referred to as “’wilder tribes.’”
Admittedly, the dissent’s interpretation of the jurisprudence on Native American land rights leaves much to be desired. However, its
But while they were, from the western legal perspective, considered
use of the Cariño doctrine was faithful to Holmes’ dictum. Because
savage and uncivilized, the Court still found it unfair to refuse of this confusion, there are presently two streams of cases in the recognition of their title. Philippines, both as prominent, as they are glaringly contradictory. In one line, lands held since time immemorial are recognized as *** Cariño has been consistently upheld by the Philippine Supreme
private. It has even been held that subsequent reclassification of
Court. And while it originally involved the claim of an individual
land cannot impair the rights of long-term occupants. In the other
“under a claim of private ownership” the Philippine Supreme Court
line, public agricultural lands become private lands and could
later expanded the doctrine to include lands held by a community,
therefore be titled. This is if the claimant can show that there has
and lands that are “unoccupied and unimproved.” Unfortunately,
been
some confusion has attended the application of doctrine. Cariño has
years. Cariño has been cited as authority for both. A recent case
continuous
been cited as authority for the Public Land Act which allows
cited both lines registration of public lands as private possession if the claimant has incongruity. been in open, continuous, exclusive and notorious possession of the
of
possession cases
thereof
without
the
for Court
at
least
observing
thirty any
said lands for thirty years. The error is obvious. Cariño involved lands
Some earlier cases did manage to make a distinction between the
which had never been public. The prescriptive remedy under the
two claims. In these cases, the Court would first check if the land is
Public Land Act admits that the land was initially public. However, it
private under the Cariño doctrine, and then examine if it has
becomes private (and therefore may be titled) after the lapse of the
become private under the Public Land Act. While the Cariñodoctrine
prescriptive period.
may be in jurisprudential limbo, the case does surface periodically in the discussions of the other branches of government.
Confusion in the Court had surfaced as early as 1931 in De Palas v. Saito and Madrazo.In that case, the Supreme Court held that the
Courts in the United States had several occasions to apply
sale of property made by a member of the Bagobo tribe without the
the Cariño decision. As will be shown, however, these courts had, for
approval of the Director of the Non-Christian tribes was null and
the most part, also misinterpreted the doctrine. These cases may be
void. While the Bagobos retained their land, the decision showed
divided into those that involved lands in its territories, and those
the Court was confused about its character. Justice Johnson in the
involving claims within the continental United States.
lone dissent explained that: There is absolutely no analogy between the relations of the non-Christian people of the Philippine Islands to
In the Territories
the Philippine Government as compared with the relation of the American Indians to the American government.
The first claims involved lands in Mexico. In Pueblo de Sta. Rosa v. Fall, the claimants filed a bill in equity in the Supreme Court in the
A citizen of the Philippine Islands, whether non-Christian or District of Columbia to restrain the Secretary of the Interior and the Christian, has a perfect right to dispose of his private property freely
Commissioner of the General Land Office from opening its lands to
without the necessity of securing the consent of any person of the
sale, entry, and settlement as public lands of the United States. The
Government…Hundreds and thousands of the non-Christian people
plaintiffs alleged that the lands were granted and conceded to the
of the Philippine Islands have, through their industry and
pueblo of Sta. Rosa by the laws and customs of the Indians,
intelligence, become the absolute owners of private property… antedating the Spanish discovery of America and the laws of Spain (Cariño vs. Insular Government, 7 Phil. 132; Cariño vs. Insular
and Mexico. The lands were part of the territory ceded by Mexico to
Government, 212 U.S. 449; 53 Law.Ed. 549; 41 Phil., 935).
United States under the Gadsden Treaty.
In the United States the government distributed lands freely to the
In resolving the issue, the Court explained that the title of the Indian
American Indians and the dispose of the same without the consent inhabitants of a pueblo in Mexico has been recognized not only by
the Mexican, but also by Spanish laws. Such recognition rests not Mandate upon title by grant or charter from the crown, but it may be established and was frequently established by prescription. It cited Cariño to stress that prescription against the Crown was recognized by Spanish laws. It said, “[t]here can be no question, we think that prior to the cession under the Gadsden Treaty the Papago Indians had acquired a title which was subject to recognition by the government of Mexico.” It concluded that, had the record title been established in Mexico to which this pueblo was clearly entitled, it could not be divested by the sort of evidence adduced in this case. This would have been the proper case to cite Cariño because the claim was premised upon the laws and customs of Indians that
The Department shall be the primary government agency responsible for the conservation, management, development, and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos.
antedated the Spanish discovery of America. The land was ceded by Spain to the United States. No grant was relied upon, and there was an assertion that both Spanish and Mexican laws relied upon, and
To accomplish its mandate, the Department shall be guided by the following objectives that will serve as basis for policy formulation: recognized such Indian title. Unfortunately, the court’s reliance Assure the availability and sustainability of the country's natural upon Cariño was merely to recognize the right of the claimant resources through judicious use and systematic restoration or through prescription, and not to reaffirm the rule that lands held replacement, whenever possible; Increase the productivity of natural resources in order to meet the since time-immemorial are private lands. demands for forest, mineral, and land resources of a growing population; The second case came some twenty years later. Playa de Flor Land Enhance the contribution of natural resources for achieving national and Improvement CO. v. United States involved lands in Panama. The economic and social development; complainants, an unincorporated association, alleged that they had Promote equitable access to natural resources by the different acquired title and rights of ownership to specific real property based sectors of the population; on prescription under the name of Playa del Flor Land and Conserve specific terrestrial and marine areas representative of the Improvement Co., their predecessors in interest, and those who had Philippine natural and cultural heritage for present and future generations. been and were in the actual, open, notorious, and adverse there was an assertion that both Spanish and Mexican laws
possession, use, and cultivation of the lands for more than forty years before the Treaty between the United States and the Republic of Panama. They also alleged that they were forcibly and unlawfully evicted and dispossessed of the lands and improvements by the United States and that the joint owners had not been paid for the property taken from them.
Constitution, Article XII, Section 4. The Congress shall, as soon as possible, determine, by law, the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide for such period as it may determine, measures to prohibit logging in endangered forests and watershed
RA 7160 or Local Government Code SEC. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
areas.
EO 192, Series of 1987
Section 4
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
Republic Act No. 8371
October 29, 1997
e) To issue certificate of ancestral land/domain title; f) Subject to existing laws, to enter into contracts, agreements, or arrangement, with government or private agencies or entities as may be necessary to attain the objectives of this Act, and subject to the approval of the President, to obtain loans from government lending institutions and other lending institutions to finance its programs;
AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLE, CREATING A NATIONAL COMMISSION OF INDIGENOUS PEOPLE, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES g) To negotiate for funds and to accept grants, donations, gifts Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::
CHAPTER GENERAL PROVISIONS
I
Section 1. Short Title. - This Act shall be known as "The Indigenous Peoples Rights Act of 1997."
CHAPTER NATIONAL COMMISSION ON INDIGENOUS PEOPLES (NCIP)
VII
Section
38. National Commission on Indigenous Cultural Communities /Indigenous Peoples (NCCP) . - to carry out the policies herein set forth, there shall be created the National Commission on ICCs/IPs (NCIP), which shall be the primary government agency responsible for the formulation and implementation of policies, plans and programs to promote and protect the rights and wellbeing of the ICCs/IPs and the recognition of their ancestral domains as well as their rights thereto. Section 44. Powers and Functions. - To accomplish its mandate, the NCIP shall have the following powers, jurisdiction and function: a) To serve as the primary government agency through which ICCs/IPs can seek government assistance and as the medium, thorough which such assistance may be extended; b) To review and assess the conditions of ICCs/IPs including existing laws and policies pertinent thereto and to propose relevant laws and policies to address their role in national development; c) To formulate and implement policies, plans, programs and projects for the economic, social and cultural development of the ICCs/IPs and to monitor the implementation thereof;
and/or properties in whatever form and from whatever source, lo cal and international, subject to the approval of t he President of the Philippines, for the benefit of ICCs/IPs and administer the same in accordance with the terms thereof; or in the absence of any condition, in such manner consistent with the interest of ICCs/IPs as well as existing laws; h) To coordinate development programs and projects for the advancement of the ICCs/IPs and to oversee the proper implementation thereof; i) To convene periodic conventions or assemblies of IPs to review, assess as well as propose policies or plans; j) To advise the President of the Philippines on all matters relating to the ICCs/IPs and to submit within sixty (60) days after the c lose of each calendar year, a report of its operations and achievements; k) To submit to Congress appropriate legislative proposals intended to carry out the policies under this Act; l) To prepare and submit the appropriate budget to the Office of the President; m) To issue appropriate certification as a pre-condition to the grant of permit, lease, grant, or any other similar authority for the disposition, utilization, management and appropriation by any private individual, corporate entity or any government agency, corporation or subdivision thereof on any part or portion of the ancestral domain taking into consideration the consensus approval of the ICCs/IPs concerned; n) To decide all appeals from the decisions and acts of all the various offices within the Commission: o) To promulgate the necessary rules and regulations for the implementation of this Act; p) To exercise such other powers and functions as may be directed by the President of the Republic of the Philippines; and q) To represent the Philippine ICCs/IPs in all international conferences and conventions dealing with indigenous peoples and other related concerns.
d) To request and engage the services and support of experts from other agencies of government or employ Section 57. Natural Resources within Ancestral Domains. - The private experts and consultants as may be required in the ICCs/IPs shall have the priority rights in the harvesting, extraction, development or exploitation of any natural resources within the pursuit of its objectives;
ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has agreed to allow such operation: Provided, finally, That the all extractions shall be used to facilitate the development and improvement of the ancestral domains.
*the right to ancestral lands which include:the right to transfer land/property to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned; the right to redemption for a period not exceeding 15 y ears from date transfer, if the transfer is to a non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP, or if the transfer is for an unconscionable consideration.
Section 58. Environmental Consideration. - Ancestral domains or
NOTE: Within their ancestral domains and ancestral lands,
portion thereof, which are found necessary for critical watersheds, mangroves wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined by the appropriate agencies with the full participation of the ICCs/IPs concerned shall be maintained, managed and developed for such purposes. The ICCs/IPs concerned shall be given the responsibility to maintain, develop, protect and conserve such areas with the full and effective assistance of the government agencies. Should the ICCs/IPs decide to transfer the responsibility over the areas, said decision must be made in writing. The consent of the ICCs/IPs should be arrived at in accordance with its customary laws without prejudice to the basic requirement of the existing laws on free and prior informed consent: Provided, That the transfer shall be temporary and will ultimately revert to the ICCs/IPs in accordance with a program for technology transfer: Provided, further, That no ICCs/IPs shall be displaced or relocated for the purpose enumerated under this section without the written consent of the specific persons authorized to give consent.
the ICCs/IPs are given the right to self-governance and empowerment, social justice and human rights, the right to preserve and protect their culture, traditions, institutions and community intellectual rights, and the right to develop their own sciences and technologies.
Republic Act No. 7942 otherwise known as “The Philippine Mining Act of 1995”: Sec. 16: No ancestral land shall be opened for mining-operations without prior consent of the indigenous cultural community concerned. Sec. 17: In the event of an agreement with an indigenous cultural community pursuant to the preceding section, the royalty payment, upon utilization of the minerals shall be a greed upon by
Are there provisions in laws that recognize the rights of Lumad or Ordinary residents to oppose the ABC Mining P roject? Republic Act No. 8371 otherwise known as “ The ***
the parties. The said royalty shall form part of a socioeconomic well-being of the indigenous cultural community.
Indigenous Peoples Rights Act of 1997” or the IPRA: is the organic law that recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and possession of their ancestral domains and ancestral lands, and
What is the extent of these rights (e.g. can they stop the project entirely?)
the form of management or stewardship.
of their exploration, provided, the ICCs/IPs must ensure that the natural resources are conserved for
Other rights are also granted to the ICCs/IPs, and
future generations and that the “utilization” of these
these are:
resources must not harm the ecology and
the right to develop lands and natural resources;
environment pursuant to national and customary
the right to stay in the territories; the right in case of displacement; the right to safe and clean air and water; the right to claim parts of reservations; the right to resolve conflict; right to ancestral lands;
The ICCs/IPs may use these resources and share in the profits of their utilization or negotiate the term
defines the extent of these lands and domains.
The ICCs/IPs’ rights over the n atural resources take
laws.
Rights of the ICCs/IPs o ver the natural resources in their ancestral domains merely the right to the small-scale utilization of these resources, and at the same time, a priority in their large-scale development and exploitation.
The law does not mandate the State to a utomatically
granting any concession, license or lease, or entering into any
give priority to the ICCs/IPs.
production-sharing agreement, without prior certification
The State has several options and it is within its
from the NCIP that the area affected does not overlap with
discretion to choose which option to pursue.
any ancestral domain.
Nothing in the law that gives the ICC s/IPs the right to
such certificate shall only be issued after a field-based
solely undertake the large-scale development of the
investigation is conducted by the Ancestral Domain Office of
natural resources within their domains.
the area concerned: Provided, That no certificate shall be
The ICCs/IPs must undertake such endeavour always
issued by the NCIP without the free a nd prior informed and
under State supervision or control.
written consent of the ICCs/IPs concerned: Provided, further,
The provisions of the law simply give due respect to
That no department, government agency or government-
the ICCs/IPs who, as actual occupants of the land
owned or -controlled corporation may issue new concession,
where the natural resources lie, have traditionally
license, lease, or production sharing agreement while there is
utilized these resources for their subsistence a nd
pending application CADT: Provided, finally, That the ICCs/IPs
survival. Neither is the State stripped of ownership
shall have the right to stop or suspend, in accordance with
and control of the natural resources.
this Act, any project that has not satisfied the requirement of this consultation process.
What are the procedures for the tribe to officially consider and allow the project to proceed (should they decide to allow)?
Sec. 17: In the event of an agreement with an indigenous cultural community pursuant to the preceding section, the royalty payment, upon
Under Sec. 57 of the IPRA:
utilization of the minerals shall be a greed upon by
A non-member of the ICCs/IPs concerned may be allowed to
the parties. The said royalty shall form part of a
take part in the development and utilization of the natural
socioeconomic well-being of the indigenous cultural
resources for a period of not exceeding twenty-five (25) years
community. (R.A. No.7942)
renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community,
Are these procedures mandatory?
YES. Sec. 57 of IPRA states that “ a formal and written
pursuant to its own decision making process, has agreed to
agreement is entered into with the ICCs/IPs
allow such operation: Provided, finally, That the all
concerned or that the community, pursuant to its
extractions shall be used to facilitate the development and
own decision making process, has agreed to allow
improvement of the ancestral domains.
such operation.”
Sec. 58:
Under Sec. 59 of IPRA, “ all department and other
Should the ICCs/IPs decide to transfer the responsibility over
governmental agencies shall henceforth be strictly
the areas, said decision must be made in writing.
enjoined from issuing, renewing, or granting any
The consent of the ICCs/IPs should be arrived at in
concession, license or lease, or entering into any
accordance with its customary laws without prejudice to the
production-sharing agreement, without prior
basic requirement of the existing laws on free and prior
certification from the NCIP that the area affected
informed consent: Provided, That the transfer shall be
does not overlap with any a ncestral domain.”
temporary and will ultimately revert to the IC Cs/IPs in accordance with a program for technology transfer: Provided, further, That no ICCs/IPs shall be displaced or relocated for
Are these requirements applicable to the problem situation?
YES. Since the proposed project is a large -scale
the purpose enumerated under this section without the
utilization of natural resources and the Lumads,
written consent of the specific persons authorized to give
being an Indigenous Cultural Community and
consent.
residents of the said settlement, the above cited
Sec. 59:
All department and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or
provisions of IPRA and Mining act are controlling and, therefore, must be strictly complied with.
***Can Filipino citizens and corporations directly exploit natural resources? Yes, but only through: 1. Co-production 2. Joint venture 3. Production sharing ***Miners v. Factoran: Can they exploit through license and concession? ***Can foreigners exploit natural resources: Yes, but only through FTAA1. Utilization of mineral, petroleum and mineral oils 2. Must be large scale exploration 3. There must be a law setting down the and conditions 4. Must notify Congress within 30 days
other
terms
Bar Question, 1994, No. 11 In the desire to improve the fishing methods of the fishermen, the Bureau of Fisheries, with the approval of the President, entered into a memorandum agreement to allow Thai fishermen to fish within 200 miles from the Philippine sea coasts on condition that Filipino fishermen be allowed to use Thai fishing equipment and vessels and to learn modern technology in fishing and canning. 1. Is the agreement valid? 2. Supposed the agreement is for joint venture on the same area with Thai oil companies for the exploitation of minerals with the Thai corporation providing technical and financial assistance? La Bugal Case 1. Can a Filipino corporation enter into a Financial and Technical Assistance with the Government? 2. Is an FTAA limited to supplying financial and technical assistance? No. It includes an integrated exploration, development and utilization. It is a service contract with the foreign corp as contractor and the government as owner. Control? Policies, guidelines, regulations in industry standards.
Chavez v. PEA: Amari Deal 1. How do you classify reclaimed areas in Manila Bay? Alienable Lands of the Public Domain. 2. Can it be sold to AMARI, a private Corporation? 3. If the land is titled in the name of the Philippine Estate Authority, are they private lands which could be sold to AMARI? [not end-user] Chavez v. NHA
Suppose the land is registered in the name of NHA, may it be transferred to a private corporation? Yes. NHA is not an a gency holding public lands. Once registered in its name, they are patrimonial properties. JG Summit May a foreign corporation be given a right of first refusal to buy the shares of a landholding corporation? Yes. By itself, it does not violate the Constitution. It can assign its rights to a qualified entity, or the corporation can divest itself of the lands so that the foreign corporation can exercise the right. Director v. Iglesia Can a corporation be transferee of an alienable land of the Public Domain which it has oc cupied by itself or through its predecessor in interest for over 30 years prior to the effectivity of the 1987 Constitution? Lee v. Republic: Land sold to C hinese. He left it to his heirs who have become Filipinos. Can the government recover? Muller: if a mixed married couple acquires land in the Philippines, and the a marriage splits, can the alien spouse get at least the monetary equivalent of his investment? Also:Ting Ho, Jr. v. Teng Gui, 558 SCRA 421 (2 008) [implied trust?] Bar Question 1989, No. 2: Maria, a natural-born Filipino citizen, went to the US in 1965 to work as a nurse. With her savings she bought a parcel of land consisting of 1,000 square meters. She had it titled in her name in 1970. In 1972, she acquired American citizenship and married a Canadian. 1. Can Maria sell the land to the sister of her husband who is a Canadian citizen? 2. Supposing Maria’s husband dies and she decides to reside in the Philippines permanently, can Maria buy the parcel of land consisting of 400 square meters neighboring her own. Bar Question 1989, No. 11 (1) A domestic corporation with 30% foreign equity proposes to publish a weekly magazine for general circulation in Metro Manila which will feature the lifestyle of the rich and the famous. May this be done? (2) May a foreigner who owns substantial stockholdings in a corporation engaged in advertising industry sit as treasurer of said corporation? 1994, No. 8: [Problem Question] Can a dual citizen be elected Vice President of a local newspaper?
Bar Question No. 5, 1993 (1) give a business activity the equity of which must be owned by Filipino citizens: a) At least 60% b) At least 70% c) 100% 2) Give 2 cases in which aliens may be allowed to acquire equity in a business activity but cannot participate in the management thereof. Bar Question 2002, No. XI A, a Filipino citizen, and his wife, B, Japanese national, bought a five hectare agricultural land from X, a Filipino citizen. The couple later executed a deed of donation over the same parcel of land in favor of their only child C. A year later, however, C died in a vehicular accident without leaving a last will and testament. Can X recover the land? Would your answer be the same if X filed the suit against C when the latter was still alive? Bar Question 2001, No. 5 A is an alien. State whether, in the Philippines, he can be a lessee of a private agricultural land? Bar Question 1998, No. 3 Express your agreement or disagreement with the following: 1. Anyone, whether individual, corporation or association, qualified to acquire private lands is also qualified to acquire public lands in the Philippines. 5. A foreign corporation can only lease private lands in the Philippines.
