SOMEONE ELSE'S WINDOWS: Subverting self-determination: A post-mortem on Ipra (3). By H. Marcos C. Mordeno

MALAYBALAY CITY (October 11, 2010) — Of the seven Supreme Court Justices who voted to grant the petition filed by retired Justice Isagani Cruz and lawyer Cesar Europa questioning the constitutionality of the Indigenous Peoples Rights Act, two – Justices Vitug and Panganiban – filed separate opinions. Panganiban voted “to partially grant the Petition and to declare as unconstitutional Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and related provisions of RA 8371. And of the seven Justices who voted against the petition, three – Justices Puno, Mendoza and Kapunan – filed separate opinions too. Justice Mendoza dismissed the petition simply because “it does not raise a justiciable controversy” and petitioners “do not have standing to question the constitutionality of RA 8371”. The other Justices just joined in the separate opinions of their peers.

Puno’s opinion defends the constitutionality of Ipra by going back to history, by tracing the development of the Regalian Doctrine in the Philippine legal system as his basis for asserting that such doctrine does not include ancestral domains as defined under Ipra. In it he acknowledges that Ipra “introduced radical concepts into the Philippine legal system which appear to collide with settled constitutional and jural precepts on state ownership of land and other natural resources.” But he stresses that “the sense and subtleties of this law” cannot be appreciated without taking the path down the labyrinths of its history. Ipra’s soul, he contends, is “shrouded by the mist of our history”.

Puno, who would later become Chief Justice, cited at length the Carino Doctrine, a unanimous decision of the US Supreme Court written by Justice Oliver Wendell Holmes and from which was derived the concept of native title. In that decision, the US SC ruled that the Regalian Doctrine is but myth and as the new conqueror, the US could assert its plenary powers (imperium) and make new rules for the benefit of the native inhabitants; it need not follow rules set by the former colonizer.

The Court summed up the essence of the Carino Doctrine in the following words:

“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.”

Puno further notes that while Section 3 of Article XII of the 1987 Constitution classifies lands of the public domain into (1) agricultural, (2) forest or timber, (3) mineral lands, and (4) national parks, Section 5 of the same Article mentions ancestral lands and ancestral domains but does not classify them under any of the said four categories. “To classify them as public lands under any one of the four classes will render the entire Ipra a nullity,” he stressed.

Yet, while Puno’s opinion sounds progressive and seemingly sympathetic to Ipra, it sings a different tune as regards the ownership and utilization of natural resources within ancestral domains. Citing Section 2 of Article XII of the 1987 Constitution, it says that “the rights of IPs to develop lands and natural resources within their ancestral domains does not deprive the State of ownership the natural resources in their development and exploitation”.

It further states that the Ipra invests in the IPs the right claim ownership over lands, bodies of water traditionally and actually occupied by them, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains but that this enumeration excludes “bodies of water not occupied by the IPs, minerals, coal, wildlife, flora and fauna…forests or timber in the sacred places…and all other resources found within their ancestral domains.”

Puno adds that Ipra merely grants the IPs the right to manage and conserve the natural resources within ancestral domains for future generations but the right of ownership of such resources remains with the State. The IPs, as stewards not owners of these resources, may only be allowed to exploit them as long as it does not exceed sustenance and survival levels. Their duty as ecological managers implies that they cannot venture into large-scale utilization.

Justice Kapunan, in his separate opinion, presents similar arguments in insisting that the State retains full control of natural resources within ancestral domains.

According to Kapunan, “Section 3(a) [of Ipra] merely defines the coverage of ancestral domains, and describes the extent, limit and composition of ancestral domains by setting forth the standards and guidelines in determining whether a particular area is to be considered as part of and within the ancestral domains.  In other words, Section 3(a) serves only as a yardstick which points out what properties are within the ancestral domains.  It does not confer or recognize any right of ownership over the natural resources to the indigenous peoples.  Its purpose is definitional and not declarative of a right or title.” [Italics mine]

Kapunan continues:

“What is evident is that the Ipra protects the indigenous peoples’ rights and welfare in relation to the natural resources found within their ancestral domains, including the preservation of the ecological balance therein and the need to ensure that the indigenous peoples will not be unduly displaced when State-approved activities involving the natural resources located therein are undertaken.”

In other words, both opinions offer a dichotomy between imperium and dominium or the power of the State to own or acquire property. Ancestral domain “owners” may stay on the land for all eternity but they can never decide on how to dispose of the natural resources that lay beneath the surface and other valuable natural resources found therein. This gives rise to the dilemma of how the right to ownership of the land can be effective without the right to exploit its resources. [To be continued]

(MindaViews is the opinion section of MindaNews. H. Marcos C. Mordeno can be reached at