CRUZ vs. SEC.

OF DENR

G.R. No. 135385 | December 6, 2000

QUESTION:

Respondents Secretary of the DENR and Secretary of DBM filed through the Solicitor General a consolidated Comment. The
Solicitor General is of the view that the IPRA is partly unconstitutional on the ground that it grants ownership over natural
resources to indigenous peoples and prays that the petition be granted in part. A group of intervenors, composed of Sen. Juan
Flavier, one of the authors of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the
leaders and members of 112 groups of indigenous peoples (Flavier, et. al), filed their Motion for Leave to Intervene. They join
the NCIP in defending the constitutionality of IPRA and praying for the dismissal of the petition. Petitioners assail the
constitutionality of the provisions of the IPRA and its Implementing Rules on the ground that they amount to an unlawful
deprivation of the State's ownership over lands of the public domain as well as minerals and other natural resources therein, in
violation of the regalian doctrine embodied in Section 2, Article XII of the Constitution.

Does the right of ownership and possession of the ICCs/IPs to their ancestral domain amounts to unlawful deprivation of the
State’s ownership over lands of the public domain?

ANSWER:

No. The right of ownership and possession of the ICCs/IPs to their ancestral domains is held under the indigenous concept of
ownership. This concept maintains the view that ancestral domains are the ICCs/IPs private but community property. It is private
simply because it is not part of the public domain. But its private character ends there. The ancestral domain is owned in common
by the ICCs/IPs and not by one particular person. The IPRA itself provides that areas within the ancestral domains, whether
delineated or not, are presumed to be communally held. These communal rights, however, are not exactly the same as co-
ownership rights under the Civil Code. Coownership gives any co-owner the right to demand partition of the property held in
common. The Civil Code expressly provides that “[n]o co-owner shall be obliged to remain in the co-ownership.” Each co-owner
may demand at any time the partition of the thing in common, insofar as his share is concerned. To allow such a right over
ancestral domains may be destructive not only of customary law of the community but of the very community itself. Following
the constitutional mandate that “customary law govern property rights or relations in determining the ownership and extent of
ancestral domains,” the IPRA, by legislative flat, introduces a new concept of ownership. This is a concept that has long existed
under customary law.

Custom, from which customary law is derived, is also recognized under the Civil Code as a source of law. Some articles of the
Civil Code expressly provide that custom should be applied in cases where no codal provision is applicable. In other words, in
the absence of any applicable provision in the Civil Code, custom, when duly proven, can define rights and liabilities. Customary
law is a primary, not secondary, source of rights under the IPRA and uniquely applies to ICCs/IPs. Its recognition does not
depend on the absence of a specific provision in the civil law. The indigenous concept of ownership under customary law is
specifically acknowledged and recognized, and coexists with the civil law concept and the laws on land titling and land
registration.

The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places,
traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;” The ICCs/IPs are
given the right to claim ownership over “lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places,
traditional hunting and fishing grounds, and all improvements made by them at any time within the domains.” It will be noted
that this enumeration does not mention bodies of water not occupied by the ICCs/IPs, minerals, coal, wildlife, flora and fauna in
the traditional hunting grounds, fish in the traditional fishing grounds, forests or timber in the sacred places etc. and all other
natural resources found within the ancestral domains. Indeed, the right of ownership under Section 7 (a) does not cover “waters,
minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all other natural resources” enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State.