REGALIAN DOCTRINE

Submitted by:Macabeo, Frances Dyan

Basig, BernadetteAlogbati, Juvelyn

Tabunyag, VincentJD 1

PRIMARY SOURCES:

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, fisheries, forests or timber, wildlife, flora and fauna,

and other natural resources are owned by the State. With the exception of agricultural lands, all

other natural resources shall not be alienated. 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-production, joint venture, or production-

sharing agreements with Filipino citizens, or corporations or associations at least sixty per

centum of whose capital is owned by such citizens. Such agreements may be for a period not

exceeding

twenty-five years, renewable for not more than twenty-five years, and under such terms and

conditions as may be provided by law. In cases of water rights for irrigation, water supply

fisheries, or industrial uses other than the development of water power, beneficial use may be

the measure and limit of the grant.”

> The abovementioned provision provides that except for agricultural lands for public domain

which alone may be alienated, forest or timber, and mineral lands, as well as all other natural

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

THE 1987 PROVISION HAD ITS ROOTS IN THE 1935 CONSTITUTION

WHICH PROVIDES—

> Section 1. All agricultural timber, and mineral lands of the public domain, waters, minerals,

coal, petroleum, and other mineral oils, all forces of potential energy and other natural resources

of the Philippines belong to the State, and their disposition, exploitation, development, or

utilization shall be limited to citizens of the Philippines or to corporations or associations at least

sixty per centum of the capital of which is owned by such citizens, subject to any existing right,

grant, lease, or concession at the time of the inauguration of the Government established under

this Constitution. Natural resources, with the exception of public agricultural land, shall not be

alienated, and no license, concession, or lease for the exploitation, development, or utilization of

any of the natural 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.

THE 1973 CONSTITUTION REITERATED THE REGALIAN DOCTRINE

AS FOLLOWS—

> Section 8. All lands of public domain, waters, minerals, coal, petroleum and other mineral oils,

all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines

belong to the State. With the exception of agricultural, industrial or commercial, residential, or

resettlement lands of the public domain, natural resources shall not be alienated, and no

license, concession, or lease for the exploration, or utilization of any of the natural resources

shall be granted for a period exceeding twentyfive years, except as to water rights for irrigation,

water supply, fisheries, or industrial uses other than development of water power, in which

cases, beneficial use may by the measure and the limit of the grant.

REPUBLIC ACT NO. 8371

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.

CHAPTER l

GENERAL PROVISIONS

Section 1. Short Title.- This Act shall be known as "The Indigenous Peoples Rights Act of 1997."Sec. 2. Declaration of State Policies.- The State shall recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder enumerated within the framework of the Constitution:a) The State shall recognize and promote the rights of ICCs/IPs within the framework of national unity and development;

b)The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic, social and cultural well being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain;c) The State shall recognize, respect and protect the rights of ICCs/IPs to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national laws and policies;d) The State shall guarantee that members of the ICCs/IPs regardless of sex, shall equally enjoy the full measure of human rights and freedoms without distinctions or discriminations;e) The State shall take measures, with the participation of the ICCs/IPs concerned, to protect their rights and guarantee respect for their cultural integrity, and to ensure that members of the ICCs/IPs benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population andf) The State recognizes its obligations to respond to the strong expression of the ICCs/IPs for cultural integrity by assuring maximum ICC/IP participation in the direction of education, health, as well as other services of ICCs/IPs, in order to render such services more responsive to the needs and desires of these communities.Towards these ends, the State shall institute and establish the necessary mechanisms to enforce and guarantee the realization of these rights, taking into consideration their customs, traditions, values, beliefs, their rights to their ancestral domains.

CHAPTER ll

DEFINITION OF TERMS

Sec. 3. Definition of Terms.- For purposes of this Act, the following terms shall mean:

a) Ancestral Domains - Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands,inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals, corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral land, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

[G.R. No. 135385.  December 6, 2000]

ISAGANI CRUZ and CESAR EUROPA, petitioners, vs. SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE NATIONAL COMMISSION ON INDIGENOUS PEOPLES,respondents.

HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID, MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL, FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID, represented by her father CORNELIO MALID, MARCELINO M. LADRA, represented by her father MONICO D. LADRA, JENNYLYN MALID, represented by her father TONY MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY BALBUENA, EDWARD M. EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B’LAAN TRIBAL FARMER’S ASSOCIATION, INTER-PEOPLE’S EXCHANGE, INC. and GREEN FORUM-WESTERN VISAYAS, intervenors.

COMMISSION ON HUMAN RIGHTS, intervenor.

IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURAL RESOURCES, INC., intervenor.

R E S O L U T I O N

PER CURIAM:

Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing Rules).

In its resolution of September 29, 1998, the Court required respondents to comment.[1] In compliance, respondents Chairperson and Commissioners of the National Commission on Indigenous Peoples (NCIP), the government agency created under the IPRA to implement its provisions, filed on October 13, 1998 their Comment to the Petition, in which they defend the constitutionality of the IPRA and pray that the petition be dismissed for lack of merit.

On October 19, 1998, respondents Secretary of the Department of Environment and Natural Resources (DENR) and Secretary of the Department of Budget and Management (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.

On November 10, 1998, 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.

On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene and/or to Appear as Amicus Curiae.  The CHR asserts that IPRA is an expression of the principle of parens patriae and that the State has the responsibility to protect and guarantee the rights of those who are at a serious disadvantage like indigenous peoples.  For this reason it prays that the petition be dismissed.

On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon Foundation for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to Intervene with attached Comment-in-Intervention.  They agree with the NCIP and Flavier, et al. that IPRA is consistent with the Constitution and pray that the petition for prohibition and mandamus be dismissed.

The motions for intervention of the aforesaid groups and organizations were granted.

Oral arguments were heard on April 13, 1999.  Thereafter, the parties and intervenors filed their respective memoranda in which they reiterate the arguments adduced in their earlier pleadings and during the hearing.

Petitioners assail the constitutionality of the following 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:

“(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in turn, defines ancestral lands;

“(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public lands, bodies of water, mineral and other resources found within ancestral domains are private but community property of the indigenous peoples;

“(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and ancestral lands;

“(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral domains;

(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral lands;

“(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction, development or exploration of minerals and other natural resources within the areas claimed to be their ancestral domains, and the right to enter into agreements with nonindigenous peoples for the development and utilization of natural resources therein for a period not exceeding 25 years, renewable for not more than 25 years; and

“(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and conserve the ancestral domains and portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or reforestation.”[2]

Petitioners also content that, by providing for an all-encompassing definition of “ancestral domains” and “ancestral lands” which might even include private lands found within said areas, Sections 3(a) and 3(b) violate the rights of private landowners.[3]

In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP and making customary law applicable to the settlement of disputes involving ancestral domains and ancestral lands on the ground that these provisions violate the due process clause of the Constitution.[4]

These provisions are:

“(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral domains and which vest on the NCIP the sole authority to delineate ancestral domains and ancestral lands;

“(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an ancestral domain and upon notification to the following officials, namely, the Secretary of Environment and Natural Resources, Secretary of Interior and Local Governments, Secretary of Justice and Commissioner of the National Development Corporation, the jurisdiction of said officials over said area terminates;

“(3) Section 63 which provides the customary law, traditions and practices of indigenous peoples shall be applied first with respect to property rights, claims of ownership, hereditary

succession and settlement of land disputes, and that any doubt or ambiguity in the interpretation thereof shall be resolved in favor of the indigenous peoples;

“(4) Section 65 which states that customary laws and practices shall be used to resolve disputes involving indigenous peoples; and

“(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights of the indigenous peoples.”[5]

Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1, series of 1998, which provides that “the administrative relationship of the NCIP to the Office of the President is characterized as a lateral but autonomous relationship for purposes of policy and program coordination.”  They contend that said Rule infringes upon the President’s power of control over executive departments under Section 17, Article VII of the Constitution.[6]

Petitioners pray for the following:

“(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related provisions of R.A. 8371 are unconstitutional and invalid;

“(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP to cease and desist from implementing the assailed provisions of R.A. 8371 and its Implementing Rules;

“(3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment and Natural Resources to cease and desist from implementing Department of Environment and Natural Resources Circular No. 2, series of 1998;

“(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to cease and desist from disbursing public funds for the implementation of the assailed provisions of R.A. 8371; and

“(5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural Resources to comply with his duty of carrying out the State’s constitutional mandate to control and supervise the exploration, development, utilization and conservation of Philippine natural resources.”[7]

After due deliberation on the petition, the members of the Court voted as follows:

Seven (7) voted to dismiss the petition.  Justice Kapunan filed an opinion, which the Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of R.A. 8371.  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 which he contends should be interpreted as dealing with the large-scale exploitation of natural resources and should be read in conjunction with Section 2, Article XII of the 1987 Constitution.  On the other hand, Justice Mendoza voted to dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do not have standing to question the constitutionality of R.A. 8371.

Seven (7) other members of the Court voted to grant the petition.  Justice Panganiban filed a separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional.  He reserves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await the filing of specific cases by those whose rights may have been violated by the IPRA.  Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional.  Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug.

As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated upon.  However, after redeliberation, the voting remained the same.  Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.

Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug, Kapunan, Mendoza, and Panganiban.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion

 

[1] Rollo, p. 114.

[2] Petition, Rollo, pp. 16-23.

[3] Id. at 23-25.

[4] Section 1, Article III of the Constitution states:  “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”

[5] Rollo, pp. 25-27.

[6] Id. at 27-28.

[7] Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-2746 December 6, 1906

MATEO CARIÑO, Petitioner-Appellant , vs. THE INSULAR GOVERNMENT, Respondent-Appellee.

 

WILLARD, J.: 

The appellant, on the 23d of June, 1903, by his attorney in fact, Metcalf A. Clarke, filed a petition in the Court of Land Registration asking that he be inscribed as the owner of a tract of land in the municipality of Baguio, in the province of Benguet, containing 146 hectares. The Government of the Philippine Islands, appeared in the Court of Land Registration and opposed the petition. The Government of the United States that the land was part of the military reservation of Baguio. Judgment was entered in the Court of Land Registration in favor of the petitioner, from which judgment the respondents appealed in accordance with the law then in force to the Court of First Instance of the province of Benguet. The case was therein tried de novo, and judgment was entered dismissing the petition. The petitioner has brought the case here by bill of exceptions.

The petitioner presented no documentary evidence of title, except a possessory information obtained in 1901. By the provisions of the Mortgage Law, under which this possessory information was obtained (art. 394), it produced only those effects which the laws give to mere possession.

The petition not having shown any title from the Government, and the land being agricultural, the case is governed by the decisions of this court in the cases of Valenton et al. vs. Murciano 1 (2 Off. Gaz., 434); Cansino et al. vs. Valdez et al. 2 (4 Off. Gaz., 488); and Tiglao vs. The Insular Government 3 (4 Off. Gaz., 747). In these cases it was held that the mere possession of land such as that in controversy in this case would give the possessor and title thereto as against the Government; in other words, that the statute of limitations did not run against the State in reference to its agricultural lands.

The petitioner, however, insists that although the statute of limitations as such did not run against the Government of Spain in the Philippine Islands, yet a grant is to be conclusively presumed from immemorial use and occupation. To say that the presumption of a grant is presumption of law is, in our opinion, simply to say that it amounts to a statute of limitations; and for a court to hold that the statute of limitations does not run against the Government as to its public agricultural lands, and at the same time to hold that if a person has been in possession of such lands for thirty years it is conclusively presumed that the Government has given him a deed therefor, would be to make two rulings directly inconsistent with each other.

Considered as a presumption of fact, the contention could not be sustained in this particular case. Here the surrounding circumstances are incompatible with the existence of a grant, It is known that for nearly three hundred years all attempts to convert the Igorots of the Province of

Benguet to the Christian religion completely failed, and that during that time they remained practically in the same condition as they were when the Islands were first occupied by the Spaniards. To presume as a matter of fact that during that time, and down to at least 1880, the provisions of the laws relating to the grant, adjustment, and sale of public were taken advantage of by these deeds from the Government for these lands would be to presume something which did not exist. The appellant says in his brief (p.10):

The Igorot, no less than the American Indian, is an aborigine, and is equally ignorant of the forms of law and procedure necessary to protect his interests.

There is, moreover, in the case evidence that in 1894 the petitioner sought to obtain title from the Government in accordance with the laws then in force. In 1901 he made a contract with Metalcalf A. Clarke, by the terms of which he agreed to sell the land to Clarke for 6,000 pesos when he obtained title thereto from the Government, and this contract he does not say that he is the owner, but simply that he is in possession thereof. The court below found that the land is now worth upwards of P50,000.

The possession of the land has not been of such a character as to require the presumption of a grant. No one has lived upon it for many years. It was never used for anything but pasturage of animals, except insignificant portions thereof, and since the insurrection against Spain it has apparently not been used by the petitioner for any purpose.

The petitioner relies upon the case of the United States vs. Chaves (159 U.S., 452) and the case of The United States vs.Chaves (175 U.S., 509). In the case of Hays vs. The United States (175 U.S. 248) the court said at page 261;

But this presumption is subject to the limitation that where title is claimed from a deed which is shown to be void, it will not be presumed that there was an independent grant (Smith vs. Highbee, 12 Vermont,. 113), or where surrounding circumstances are inconsistent with the theory of a grant. (Townsend vs. Downer, 32 Vermont, 183).

The substance of this doctrine is that lapse of time any be treated as helping out the presumption of a grant, but where a void grant is shown, it affords no presumption that another valid grant was made. Nor does such presumption arise if the surrounding circumstances are incompatible with the existence of a grant. In this case under consideration we can not find any evidence which justifies us in believing that a legal grant can have been made, and under those circumstances we can not consider possession since the date of the treaty as dispensing with the requirement that the title, if not perfect at that time, was one which the claimant would have a lawful right to make perfect had the territory not been acquired by the United States.

In the case of Chaves vs. The United States (175 U.S., 552) the court made the following statement at page 562:

Finally, it distinctly appears that the possession of the parties is insufficient in length of time to prove a valid title. In United States vs. Chaves (159 U.S., 452) the possession was under the claim of a grant made by the governor of New Mexico to the alleged grantees. The grant had been lost, but it had been seen and read by witnesses, and its existence had been proved by evidence sufficient, as we stated in the opinion (p. 460), to warrant ‘the finding of the court below that the complainant’s title was derived from the Republic of Mexico, and was complete and perfect at the date when the United States acquired sovereignty in the territory of New Mexico, within which the land was situated. We do not question the correctness to the remarks

made by Mr. Justice Shiras in regard to evidence of possession and the presumptions which may under certain circumstances drawn as to the existence of a grant.

We do not deny the right of the duty of a court to presume its existence in a proper case, in order to quiet a title and to give to long continued possession the quality of a rightful possession under a legal right. We recognized and enforced such a rule in the case of United States vs. Chaves decided at this term. in which the question is involved. We simply say in this case that the possession was not a duration long enough to justify any such inference.

There is no proof of any valid grant, but on the contrary the evidence offered by the plaintiff himself and upon which the bases the title that he asks the court to confirm, shows the existence of a grant from a body which had no legal power to make it, and which, therefore, conveyed no title whatever to its grantee, and the evidence is, as given by the plaintiff himself, that it was under this grant alone that possession of the lands was taken. We can not presume (within the time involved in this case) that any other and valid grant was ever made. The possession of the plaintiff and of his grantors up to the time of the treaty of Guadalupe Hidalgo, in 1848, had not been long enough to presume a grant. (Crispin vs. United States, 168 U.S., 208; Hayes vs. United States, 170 U.S., 637, 649, 653; Haysvs. The United States, ante 248.) The possession subsequently existing, we can not notice. Same authorities.

As we understand it, it is well settled in the United States that prescription does not run against the Government as to its public lands – in other words, that if a person desires to obtain title to the public lands of the United States situated within the boundaries of the States, he must do so in the way pointed out by the law. We do not understand that a person in possession of unsurveyed public lands in the State of Minnesota, for example, whose ancestors had occupied that the land for fortyh years, could maintain in court a claim that he was the legal owner of the lands by granted the land to his ancestors, a presumption founded not upon any proceedings taken in the General Land Office to acquire a patent thereto, but upon the mere possession for that length of time.

The same is true of the public lands of Spain in the Philippine Islands. In the case of Valenton et al. vs. Marciano it was said:

While the State has always recognized the right of the occupant to a deed if he proves a possession for a sufficient length of time, yet it has always insisted that he must make that proof before the proper administrative officers, and obtain from them his deed, and until he did the State remained the absolute owner.

But in any event, and whatever the law may be elsewhere, it seems clear that this doctrine of presumptive grant can not apply to the Philippines in view of the Spanish legislation for the Indies. From time to time there were promulgated laws which required the person in possession of public lands to exhibit their titles or grants thereto. If these titles or grants were found to be good, they were confirmed, but if they were not, or if the persons had no grants or titles at all, they were evicted from the land.

For example, in Law 14, title 12, 4, Recompilation of the Laws of the Indies, it is stated:

We therefore order and command that all viceroys and presidents of pretrial courts designate, at such times as shall to them most expedient, a suitable period within which all possessors of tracts, farms, plantations, and estates shall exhibit to them and to the court officers appointed by them for this purpose their title deeds thereto. And those who are in possession by virtue of

proper deeds and receipts or by virtue of just prescriptive rights shall be protected, and all the rest shall be restored to us to be disposed of at our will.

In the Royal Cedula of October 15, 1754, it was provided -

that any and all persons who, since the year 1700, and up to the date of promulgation and publication of said order, shall have occupied royal lands, whether or not the same shall be cultivated or tenanted, may, either in person or through their attorneys or representatives, appear and exhibit to said subdelegates the titles and patents by virtue of which said lands are occupied. Said subdelegates will designate as the period within which documents must be presented a term sufficient in length and proportionate to the distance the interested party may have to travel for the purpose of making the presentation. Said subdelegates will at the same time warn the parties interested that in term designated, without a just and valid reason therefor, they will be deprived of and evicted from their lands, and they will be granted to others.

In the regulations of June 25, 1880, it was provided as follows:

ART. 8. If the interested parties shall not ask an adjustment of the lands whose possession they are unlawfully enjoining within the time of one year, or, the adjustment having been granted by the authorities, they shall fail to fulfill their obligation in connection with the compromise, by paying the proper sum into the treasury, the latter will, by virtue of the authority vested in it, reassert the ownership of the Stated over the lands, and will, after fixing the whole thereof, proceed to sell at public auction that part of the same which, either because it may have been reduced to cultivation or is not located within the forest zone, is not deemed advisable to preserve as State forest reservations. 4

In the royal decree of the 13th of February, 1894, published in the Official Gazzette of Manila of the 17th of April, 01894, it is provided in article 4 as follows:

ART. 4. The title to all agricultural lands which were capable of adjustment (composicion) under the royal decree of the 25th of June, 1880, but the adjustments of which decree in the Gaceta de Manila, will revert to the State. Any claim to such lands by those who might have applied for the adjustment of the same, but who have not done so as the above mentioned date, will not avail them in any way or at any time.

In view of these provisions of the law, it seems to us impossible to say that as to the public agricultural lands in the Philippines there existed a conclusive presumption after a lapse of thirty or any other number of years that the Government of Spain had granted to the possessor thereof a legal title thereto.

The plaintiff is not entitled to the benefits of paragraph 6 of section 54 of Act No. 926, the Public Land Act, for the reason that act is not applicable to the Province of Benguet. The judgment of the court below is affirmed, with the costs of this instance against the appellant.

After the expiration of twenty days let judgment be entered accordingly and ten days thereafter the case be returned to the court below for execution. So ordered.

Arellano, C.J., Torres, Carson and Tracey, JJ., concur.

Mapa, J., concurs in the result.

SECONDARY SOURCES ARTICLES

Ancestral domain vs regalian doctrineFirst of 3 parts

MANILA, Philippines?Eight years ago the Supreme Court was confronted with the issue whether ?ancestral domain? should be recognized as a legal category in Philippine jurisprudence. In the end, ancestral domain as a working legal category was upheld by a vote of 7-7.

Notably, however, the seven who voted against it and four who voted for it are no longer in the Supreme Court. Thus debate about it today might be a different ballgame altogether.

More than the matter of Court composition, however, is the expansion of the concept itself. Eight years ago the issue was largely about land and proprietary ownership. But, in the GRP-MILF draft MOA, ?Ancestral domain, as a concept in the context of the GRP-MOA became more than just land and its proprietary ownership. The MOA-AD also had items that explicitly defined the Bangsamoro people?s identity and acknowledged their roots from a self-governing society in pre-Colonial Philippines. At the heart of the concept of AD was respect and acknowledgment, not only of the Bangsamoro people?s rights and freedoms, but also vested property rights and religious and cultural liberties of other peoples.?

Put succinctly, it became about both dominium and imperium. And this is what made the matter complicated enough to make some politicians climb the wall and rush the Court to issue a TRO. The dominium part was difficult enough, as evidenced by the 7-7 vote of eight years ago; and the imperium part was made more difficult by time-tested concepts of both constitutional law and international law now being confronted by embryonic legal concepts arising out of the proliferation of peace agreements which even now are being labeled as lex pacificatoria.

But let us begin from where it began.

The Novisima Recopilacion de Leyes de las Indias started it all. The Spanish Crown put it thus:

?We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of grant be restored to us as they belong to us, in order that after reserving before all what to us or to our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in those places which are peopled, taking into consideration not only their present condition, but also their future and their probable increase, and after distributing to the natives what may be necessary for tillage and pasturage, confirming them in what they now have and giving them more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose of as we may wish.?

Thus was asserted the regalian doctrine. The Spanish king claimed ownership of everything of value in the Indies or colonies thereby stripping natives of their ancestral rights to land. Philippine courts, all the way to the Supreme Court even after the arrival of the Americans, followed the regalian doctrine.

Then came in 1906 Cariño vs. Insular Government, a decision penned by Justice Holmes, reversing a decision that had gone all the way to the Philippine Supreme Court. The case involved the claim by a native Ibaloi to ownership antedating colonial times. Justice Holmes wrote:

?It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those in the same zone of civilization with themselves. It is true, also, that in legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign shall insist upon the 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.?

Whereupon the new sovereign through Justice Holmes ruled in favor of Cariño and ordered the registration of the 148 hectares in Baguio Municipality in his name. Justice Holmes recognized that Cariño had ?native title? to the land, saying: ?The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument, characterized as a savage tribe that never was brought under the civil or military government of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly the plaintiff was entitled by the Spanish Laws, and which would have made his title beyond question good. Whatever may have been the technical position of Spain it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present government seized his land. The argument to that effect seems to amount to a denial of native titles through 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 Cariño decision notwithstanding, however, the 1935 Constitution embodied the regalian doctrine. So did the 1973 Constitution and now the 1987. Can ancestral domain and regalian doctrine stand together? (To be continued)

Ancestral domain vs Regalian doctrineSecond of 3 parts By Fr. Joaquin G. Bernas, S.J.Philippine Daily InquirerFirst Posted 20:46:00 09/29/2008

 

MANILA, Philippines?Eight years ago the Supreme Court was confronted with the issue whether ?ancestral domain? should be recognized as a legal category in Philippine jurisprudence. In the end, ancestral domain as a working legal category was upheld by a vote of 7-7.

Notably, however, the seven who voted against it and four who voted for it are no longer in the Supreme Court. Thus debate about it today might be a different ballgame altogether.

More than the matter of Court composition, however, is the expansion of the concept itself. Eight years ago the issue was largely about land and proprietary ownership. But, in the GRP-MILF draft MOA, ?Ancestral domain, as a concept in the context of the GRP-MOA became more than just land and its proprietary ownership. The MOA-AD also had items that explicitly defined the Bangsamoro people?s identity and acknowledged their roots from a self-governing society in pre-Colonial Philippines. At the heart of the concept of AD was respect and acknowledgment, not only of the Bangsamoro people?s rights and freedoms, but also vested property rights and religious and cultural liberties of other peoples.?

Put succinctly, it became about both dominium and imperium. And this is what made the matter complicated enough to make some politicians climb the wall and rush the Court to issue a TRO. The dominium part was difficult enough, as evidenced by the 7-7 vote of eight years ago; and the imperium part was made more difficult by time-tested concepts of both constitutional law and international law now being confronted by embryonic legal concepts arising out of the proliferation of peace agreements which even now are being labeled as lex pacificatoria.

But let us begin from where it began.

The Novisima Recopilacion de Leyes de las Indias started it all. The Spanish Crown put it thus:

?We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of grant be restored to us as they belong to us, in order that after reserving before all what to us or to our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in those places which are peopled, taking into consideration not only their present condition, but also their future and their probable increase, and after distributing to the natives what may be necessary for tillage and pasturage, confirming them in what they now have and giving them more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose of as we may wish.?

Thus was asserted the regalian doctrine. The Spanish king claimed ownership of everything of value in the Indies or colonies thereby stripping natives of their ancestral rights to land.

Philippine courts, all the way to the Supreme Court even after the arrival of the Americans, followed the regalian doctrine.

Then came in 1906 Cariño vs. Insular Government, a decision penned by Justice Holmes, reversing a decision that had gone all the way to the Philippine Supreme Court. The case involved the claim by a native Ibaloi to ownership antedating colonial times. Justice Holmes wrote:

It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those in the same zone of civilization with themselves. It is true, also, that in legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign shall insist upon the 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.?

Whereupon the new sovereign through Justice Holmes ruled in favor of Cariño and ordered the registration of the 148 hectares in Baguio Municipality in his name. Justice Holmes recognized that Cariño had ?native title? to the land, saying: ?The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument, characterized as a savage tribe that never was brought under the civil or military government of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly the plaintiff was entitled by the Spanish Laws, and which would have made his title beyond question good. Whatever may have been the technical position of Spain it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present government seized his land. The argument to that effect seems to amount to a denial of native titles through 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 Cariño decision notwithstanding, however, the 1935 Constitution embodied the regalian doctrine. So did the 1973 Constitution and now the 1987. Can ancestral domain and regalian doctrine stand together? (To be continued)

  

 

Ancestral domain vs Regalian doctrineThird (last) of 3 parts By Fr. Joaquin G. Bernas, S.J.Philippine Daily InquirerFirst Posted 04:06:00 10/06/2008 MANILA, Philippines – Senator Flavier continued his sponsorship speech on the Ipra Law thus:

“The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long before any central government was established. Their ancestors had territories over which they ruled themselves and related with other tribes. These territories-the land-include people, their dwelling, the mountains, the water, the air, plants, forest and the animals. This is their environment in its totality. Their existence as indigenous peoples is manifested in their own lives through political, economic, socio-cultural and spiritual practices. The IPs’ culture is the living and irrefutable proof to this. Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on it. Otherwise, IPs shall cease to exist as distinct peoples.”

To make the long story short, Flavier’s Senate Bill No. 1728 was carried by 21 senators with neither a vote against nor an abstention. Its House counterpart, House Bill No. 9225, authored by Rep. Gregorio Andolana of North Cotabato, was approved with no objection. These now form the Indigenous Peoples Rights Act of 1997.At the heart of Ipra are the concepts of ancestral domain and ancestral land. These too are central to the rejected GRP-MILF draft Memorandum of Agreement (MOA).

Ipra defines ancestral domain as referring to “all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.”Ancestral land “refers to land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors-in-interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.”

Ancestral land, therefore, is narrower than ancestral domain which refers to more than just land.But the important element of these concepts is that both ancestral domain and ancestral land are considered private and do not come under the “public domain.” And as the MOA-AD pointed out, both the GRP and the MILF were in agreement on this on the basis of the Supreme Court decision in Cruz v. DENR in 2000.

When the Ipra Law was challenged before the Supreme Court in Cruz v. DENR, the central objection to its constitutionality was that it unlawfully deprived the State of ownership over lands of the public domain as well as of minerals and other natural resources therein, in violation of the regalian doctrine still embodied in Section 2, Article XII of the Constitution. Those who opposed the law argued that the Cariño decision could not be superior to the will of the sovereign people expressed in the 1935, 1973 and 1987 Constitutions. Moreover, as to the Constitution’s reference to the applicability of customary law, it was argued that what was meant was that Congress should look closely into the customary laws and, with specificity and by proper recitals, hew them to, and make them part of, the stream of laws and publish them in order to satisfy the “due process clause.”The main contention of those who defended the Ipra Law, however, was that, even accepting jura regalia, Spain could claim dominium only over unoccupied and unclaimed portions of the islands. The defenders therefore, arguing from the due process clause, recognized the existence of native title prior to arrival of the colonists.

Ipra defined native title as referring to “pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest.” Moreover, Ipra still kept for the State control over natural resources even in ancestral domain.As mentioned earlier, the Supreme Court voted 7 to 7 on unconstitutionality, thus failing to muster a majority to declare the law unconstitutional. Meanwhile, the composition of the Supreme Court has changed, and change in composition can result in alteration of doctrine.In my column of Sept. 8 I discussed the Ipra procedure for its implementation. It will not be easy, especially with the intrusion of the governance aspect introduced by the MOA-AD.

INTERNET ARTICLES

http://fvdb.wordpress.com/2012/03/03/regalian-doctrine-versus-rps-mining-industry-and-economic-progress/

Regalian Doctrine Versus RP’s Mining Industry and Economic Progress

MARCH 3, 2012

A recent conference on “mining’s impact on the Philippine economy and ecology” has become

one of the hottest, if not thehottest, topics in the business world. During that confab, the

country’s business sector conceded that the government must regulate the mining industry.

While arguing that we can’t live without mining, famous businessman Manny V. Pangilinan said

that “the mining industry was not perfect”, thus it must be regulated by both national and local

governments.

A former government official said he was in favor of mining but under very strict parameters.

In effect, what these influential people were saying is: “OK. Mining is good, but it must be

regulated and it must be for the good of society.”

These statements, if carefully evaluated, operate on the premise that the country’s mining lands

or mineral resources are owned by the state. Thus, nobody owns them. They can only be given

by the state through license, contract, or grant. They cannot be expropriated. This gives the

state, which is the sole owner of lands of public dominion, the authority to regulate the mining

sector pursuant to the Constitution and to the laws enacted or to be enacted by our lawmakers.

The primitive, colonial Regalian Doctrine

But… such a statist notion is founded on a single primitive, royalist concept, which has all the

trappings of European collectivism or statism. This concept is called the Regalian Doctrine first

introduced to our political system by the Spaniards through the Royal Decree of 13 February

1894 or the Maura Law. According to this doctrine, all lands of the public domain belong to the

State.

This system is enshrined in the 1987 Constitution under Article 12, Section 2, which states:

“All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all

forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural

resources are owned by the State.”

The above-mentioned Constitutional provision is the main reason why the country’s mining

industry is one of the most regulated industries in the world. In fact, almost all mining countries

of the world, except the United States, follow this Regalian Doctrine.

To understand the evil of this doctrine, as well as its impact on the country’s mining sector and

on the concept of property rights, it is imperative to look at its historical background and how

free countries, particularly the United States, rejected its conceptual and political basis.

As already stated, the Regalian Doctrine, which was apparently a colonial instrument, is the

principle that all natural resources belong to the state. Under this system, the Philippine islands

were considered Crown properties or possessions. Through this colonial tool the entire territory

was practically owned by the Spanish Crown, and all lands therein could only be disposed of or

granted to individuals or entities through the will of the Crown.

The doctrine and the feudal system

In effect, it was this colonial principle that established and helped propagate the feudal system

in the 18th century, wherein most of the lands were owned by the Catholic Church and by early

feudal lords.

Historian Samuel Tan wrote:

“Under the Regalian Doctrine, the Philippine Islands were Spanish possessions and all lands

therein were Crown lands disposable to individual, institutions, or corporations as the Crown

willed in the form of encomiendas and/or landed estates called haciendas, together with the

services and tributes of the native inhabitants who had lived in the lands as their ancestral

homelands.”[1]

The first victims of the doctrine were the early settlers who owned and occupied their lands

since time immemorial.

As Owen Lynch and Kirk Talbott correctly observed:

“The Maura Act highlighted the colonial regime’s insensitivity to the plight and potential of the

colony’s poor rural majority. By empowering the colonial officials to deny legal recognition of

community-based property rights, the Maura act reneged on Spain’s thre-centuries-old (albeit

largely ignored) commitment to respect such traditions, thus disenfranchising several millions of

rural farmers.”[2]

This feudal system favored a few lucky men— the caciques— who acquired legal titles through

collaboration with the colonial regime. This government-sponsored injustice, caused by

inequitable allocation of legal rights to natural resources, led to the first revolt against colonial

rule in the country two years after the Maura rule was implemented in 1894. However in 1898

Spain lost to the United States, which ended its three-centuries-old rule in the Philippines.

Mythical doctrine as a convenient legal pretext

Following the fall of the Spanish rule, the United States reinvented the Regalian Doctrine as a

“convenient legal pretext”. According to Lynch and Talbott, the U.S. colonial regime, under the

rule of the Democrats, concocted and promoted a legal myth now called the “Regalian Doctrine”

in order to “justify and perpetuate the expropriations based on the Maura Act of 1894”.[3] This

new lie asserted that Ferdinand Magellan acquired the early settlers’ property rights and

sovereignty when he planted a cross on a small island known as Mactan in 1521.

Lynch and Talbott argued:

“The mythical Regalian Doctrine provided the new colonial regime with a convenient legal

pretext for claiming ownership of more than 90 percent of the Philippines’ total land mass. It

likewise nurtured the largely unrealized hope of senior U.S. colonial officials who believe that

they could lure U.S. corporations— especially sugar-cane-growing enterprises— to the

Philippines by providing them with legal rights over large tracts of fertile land.”[4]

Certainly those “senior U.S. colonial officials” were part of the then dominant Democratic party

in the United States. It must be noted that the American society, from 1890s up to 1930s, had

been undergoing drastic political changes now known as the ‘progressive era’. During that dark

period, the United States dramatically departed from its founding principles— the Republican

principles of limited government, free market capitalism, and non-intervention.

Doctrine repugnant to property right

In 1909, a ruling of the U.S. Supreme Court (Carino v. Insular Government) rejected the

Regalian Doctrine; however, the Manila-based government largely ignored said ruling.[5]

In the landmark case Carino v. Insular Government, the Court declared that the land occupied

by the Philippines since time immemorial was never legally public land. Justice Holmes, who

penned the ponencia, stressed that even if Spanish Crown refused to recognize the property

rights of the early inhabitants, it did “not follow that, in the view of the United States, [they] had

lost all rights and [were] merely trespasser[s].” However, contrary to the general notion that the

Maura Law mandated “the confiscation of a right”, Holmes clarified that the Spanish law merely

“withdraw the privilege to register rights.”[6]

The U.S. Court considered the doctrine repugnant, noting that the argument “seems to amount

to a denial of native titles for the want of ceremonies which the Spaniards would not have

permitted and had not the power to enforce.”[7]

Nealy 100 years later the ruling in Carino became the ‘philosophical’ basis of the Indigenous

People’s Rights Act (IPRA) of 1997.

The Carino doctrine states: “Every presumption is and ought to be against the Government in a

case like the present. It might, perhaps, be proper and sufficient to say that when, as far back as

testimony or memory goes, the land has been held by individuals under a claim of private

ownership, it will be presumed to have been held in the same way from before the Spanish

conquest, and never to have been public land.”

Regalian doctrine the philosophical basis of IPRA

My understanding is that the controlling principle laid down in Carino repudiated the Regalian

Doctrine and empowered and affirmed the American concept of individualism and property

rights. In fact, the case’s ratio decidendi is antithetical to the doctrine, and what is clear is that

the Carino ruling considered the it repugnant to people’s property rights, a principle that should

have served as a philosophical guide to the then Manila-based regime to reject, destroy, and

repudiate this colonial, statist system.However, as stated above, the country’s early political

leaders in Manila simply ignore Carino’s ruling strongly founded on the principle of individuals’

property rights.

The problem with IPRA is that the well-intentioned idea of protecting indigenous communities

institutionalizes preferential treatment of so-called minority communities. The law should be

applied to all. If these so-called indigenous people had the right to own ancestral lands and

natural resources, then other communities should also be allowed by law to enjoy the same

right— or privileges (if that’s what you call it).

I repeat: the Carino ruling simply affirmed and empowered the property rights of every

individual, not merely of so-called indigenous community people, and strongly repudiated the

statist idea that all lands of public domain belong to the state.

The legality or constitutionality of IPRA was challenged before the Court in Cruz v. DENR. The

petitioner argued that the Act unlawfully deprived the State of ownership over lands of the public

domain as well as of minerals and other natural resources therein, in violation of the Regalian

Doctrine still embodied in Section 2, Article XII of the Constitution. In ruling in favor of

indigenous people’s right to their ancestral lands and ancestral domain, the Supreme Court, in

effect, parodied King Philip’s royal mandate in 1594, wherein the latter specified that “Grants of

land to Spaniards be without injury to the natives and those which have been granted to their

loss and injury be returned to their lawful owners.”[8]

American historians Montgomery and Glazer critiqued the doctrine in the following manner:

“First, it vests ownership and control of land— and the resources therein— in the hand of the

State, to the prejudice of the same communities [indigenous people]. The only generally

recognized exceptions to this general rule are lands which are already covered by documents of

titles. Lands which are not so titled are treated as part of the public or government lands, or of

the public domain.

“Secondly, as a corollary to the above, the natural resources within these public lands are

consequently under the control of the State.”[9]

Filipino nationalists maintained the status quo

Since Philippine independence, the nationalist politicians chose to maintain the same system of

land ownership and classification based on the Regalian Doctrine. This political choice largely

maintained the status quo, albeit with a few modifications, since 1894, as land in the Philippines

was either considered of private ownership or of public domain. Only agricultural lands were

classified as disposable and inalienable. The Regalian Doctrine was largely emphasized in all

the three constitutions adopted for the Philippine Republic in 1935, 1973, and 1987.

If during the Spanish rule the entire Philippine territory was considered property of the Spanish

Crown, today a reinvented Regalian Doctrine makes the State the property owner of all lands of

the public domain, and this is the reason why the entire Philippine economy and almost all

economic activities are heavily regulated. This is the reason why the new and previous

constitutions heavily restricted foreign ownership of land and business. This royalist, colonial

doctrine—along with its allied principles, namely, social justice, social equality, egalitarianism,

national patrimony, and public welfare— is the reason why this country remains poor. In fact, as

most formerly socialistic countries in Asia embark on economic openness and liberalization, the

Philippines is moving backwards, as its leaders refuse to give up these primitive, tribal

principles.

The case of La Bugal-B’laan

The paramount- or evil- influence of the Regalian Doctrine was clearly demonstrated in La

Bugal-B’laan v. DENR. In this landmark case, the Court asserted the authority of the Regalian

Doctrine enshrined in Article XII Section 2 of the 1987 Constitution and declared that RA 7942

or the Philippine Mining Act of 1995 is unconstitutional for allowing fully foreign owned

corporations to exploit Philippine natural resources. Unlike the 1935 and 1973 Constitutions that

authorized the State grant licenses, concessions, or leases for the exploration, exploitation,

development or utilization of natural resources, the 1987 Constitution merely permits foreign

owned corporations to provide technical or financial assistance to the State for large scale

exploration, development and utilization of minerals, petroleum and other mineral oils.

The Supreme Court held: “In any case, the constitutional provision allowing the President to

enter into FTAAs with foreign-owned corporations is an exception to the rule that participation in

the nation’s natural resources is reserved exclusively to Filipinos. Accordingly, such provision

must be construed strictly against their enjoyment by non-Filipinos.”

In this age of globalization and technological innovation, we arbitrarily, capriciously limit foreign

participation in our ailing economy and industries when most governments the world over allow

Filipinos to invest and buy lands in their respective countries. Without a doubt, Philippine

protectionism is in violation of the principle of reciprocity in international law. It is our mediocre,

anti-reality, anti-economics protectionism anchored on the statist principles of egalitarianism,

Regalian dogma, and social justice that have been driving our economy into the ground.

Freedom for the mining sector

The mining industry, including all other industries, in this country should be free from the

shackles of these instruments of statism or collectivism.

With all due to respect to some of our industrialists and businessmen in the mining industry who

have clear conscience and who have honestly achieved their economic success, the only

solution is economic freedom under a free market system— and the only way to achieve this

goal is through constitutional revision.

Contrary to views and advocacy of some of the country’s business elites, the idea of public-

private partnership will only give coercive political power to politicians, both in the national and

local government, to use the same power against unarmed businessmen.

There is a big distinction between political power and economic power. Political power in

business is that which empowers or authorizes any politician to arbitrarily regulate economic

activities and to crackdown on what some potential ‘central planners’ deem as ‘activities’

inimical to the interest of the whole society. On the other hand, economic power is that power

held by any businessman who engages in business or any kind of economic activity. It is the

power to persuade or to convince the people— who are essentially the consumers— to buy or

patronize one’s product or service. Under a free market system, consumers vote with their

money, and every dollar spent on any product or service constitutes a separate vote. That’s the

only power held and enjoyed by every businessman.

The evil idea of public-private partnership

It is the idea of public-private partnership that destroys freedom in the markets and that paves

the way for the road to serfdom, wherein any favored or politically connected businessman, also

called a ‘crony’, acquires economic monopoly or cartel through government help and protection.

History has it that all coercive, destructive monopolies were caused and created by

governments.

To understand why economic freedom is the best and only moral solution to our mining industry

and to the country’s current economic ills, it is necessary to look at the history of mining and of

mining law and to know the unintended consequences of political regulation of mining industry.

How freedom led to mining boom in the U.S.

In the early years of the United States, which is the birthplace of free market capitalism, some of

its ceded states were acquired from Mexico and France— both of which had long-established

mining laws, which carried the influence of the Regalian Doctrine. The sway of this colonial

doctrine, which was paramount in these countries, had been said to be at odds with the United

States’ Anglo-Saxon common-law system. The American common-law system gives a

landowner a right to the minerals beneath the surface of his land property.

According to Jesse Hoover, who wrote a compelling book titled ‘The Economics of Mining’:

“The Regalian Doctrine did not prevail, and therefore a patent from the federal government has

ordinarily carried with it the right both to hold the surface of the property and to mine all minerals

beneath the surface. Title vests in the patentee absolutely, and under most conditions the land

becomes private property.”[10]

Mining claims and statist regulations of the mining industry were virtually non-existent in the

early free market years of the United States. Such mining claims and regulations first existed in

Europe and in Latin America, wherein the Regalian Doctrine, or the notion that mineral wealth

pertains to the Crown, prevailed.

In 1807 the U.S. Congress started leasing mining lands, however, the results were

disappointing that it decided to abandon the system in 1847.

Hoover said that miners began to search for a mining sanctuary that guaranteed them freedom

from government restriction and intervention. He wrote:

“When miners from all parts of the world flocked to the Pacific Coast the mineral lands were

unsurveyed and there was no federal administration or restriction of mining in the public domain.

Regulations were worked out by small groups of miners in the various districts. These men,

ignorant of precedents and principles, met together and passed rules which were the outgrowth

of the needs of the hour in rude times and were based merely upon expediency. These early

codes have been termed by R.W. Raymond, a writer of greatest authority, the “law of lariat.”[11]

Hoover then quoted Raymond as saying:

“With the lariat they measures the distance and assigned to each miner along the gold-bearing

gulch— a double portion to the discoverer, and a single portion to his successors, in the order of

their coming. With the lariat, they hung, after such due process of law as was available, the

rascal who stole a horse, or a bag of gold-dust, or a mining claim, or killed another man without

giving him a fair notice and a fair notice and a chance to defend himself.”[12]

Objective law, not regulations

However, I strongly disagree with Hoover’s description of these early miners as having “an

imperfect knowledge of law and history.” In my own opinion, these men who loved freedom

clearly understood the proper concept of law. That the law is all about human survival and self-

preservation. That is, a law should not be against human nature and survival— it should not be

against man’s mind and reality. A law that is anti-mind and anti-reality is not a law, but an anti-

law. Nevertheless, Hoover correctly observed that these early miners had “a strong sense of

justice”, as they “keenly felt that labor and pains of discovering a gold deposit should be

generously rewarded. They therefore gave priority to the discoverer, and allowed him a double

claim along the gulch.”

That statement reminds me of how the Philippine government and the anti-mining, anti-mind,

anti-reality mob treat people in the mining industry, particular foreign investors who are willing to

share their technical know-how, technologies, and wealth with Filipinos. These technical people

are being publicly criticized by Filipino throwbacks who just can’t understand the crucial,

indispensable role of mining in human life.

Yet what these clueless anti-mining leftists do not understand is that their lives and survival on

earth largely depend upon the people in the mining industry. Yes, the future lies in the ability

and willingness of some people to mine earth’s hidden resource and then transform the same

into an actual wealth.

America’s early mining industry did not succeed through government help or government

regulations. It succeeded by searching— and then valuing— freedom, which was unfortunately

eroded during America’s progressive era. It’s no surprise that America became the most

economically prosperous nation on earth. All credit must go to America’s Founding Fathers who

understood and valued the concepts of limited government, individual rights, and economic

freedom.

The real enemy is this Regalian principle, which is one of the root causes of injustice, poverty,

and statism in the Philippines.

[1] Tan, S.K. (2011) The Muslim South and Beyond, Quezon City, Philippines: UP Press.

[2] Lynch, O. and Talbott, K. (1995) Balancing Acts: Community-based Forest

Management,World Resource Institutte, [Online], Available

athttp://pdf.usaid.gov/pdf_docs/PNABX171.pdf [2 March 2012]

[3] Ibid, pp. 44.

[4] Ibid, pp. 45.

[5] Carino v. Insular Governmnt, 212 U.S. 449 (1909).

[6] Ibid.

[7] Ibid.

[8] van den Top, G. (2003) The Social Dynamics of Deforestations in the Philippines: Actions,

Options and Motivations, NIAS Press.

[9] Montgomery, J.D. and Glazer, N. (2002) Sovereignty under challenge: how governments

respond, New Jersey: Transaction Publishers.

[10] Hoover, J. (1948) The Economics of Mining (Third Edition): Value Organization

Management, California: Stanford University Press.

[11] Ibid, pp. 366.

[12] Ibid, 367.