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C[<iapter 5

Ancestral domains and mining clahns


Indigenous People's lsagani Cruz v. Department of Environment and Natural Resources et al and.La Bugal B'laan Tribal Association, Inc. v. Victor Ramos, Department of Environment and Natural Resources et al
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APRIL of fire. So

.1999 began as a was

sunny morning in the cool mountain retreat prepared for this auspicious day, his baptism inl\.is undertaking that he forgot to bring his toga
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ofBagtiid. Sedfrey and had tobotrow one. : Marvic Leonen was in the of the C<?Untry's neglected e.i:hnic groups from

league as Candelaria, both of them young, peoples. He, too, felt that it was going to Cordillera, Mindoro, and Mindanao had e.ach

lawyers taking theless fashionable path for the public interest be a crucial day for the schedu,led oral arguments before the Supreme Court. given Leonen an amulet for luqk and courage; and they had, for that purpose, voice to be heard symbolically. He held a. i:itual for the gods for,theii . . common . h&d put on him. tokens in hiS considered that a Ml:d was told by the tribal elders later on, that of light from the summer sun's ray had fallen omen, a sign or'illumination. when he spoke in court, a

A crowd was beginning to gather at the session hall of the Supreme Court's central Bagul.o building, where.the Justices traditionally conduct their hearings during the summer months to avoid the worst of the lowland heat. That day

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the high tribunal was to hear one of the most contentious national. issues at that time, and some would remember it as fortuitous albeit suffused with argumentation what it means to be of a land. . Pockets of demonstrations had already started outside the distinctive 1960s gray concrete building, ensconced in a garden df tall and trimmed cypress trees. A phalanx of lawyers, government officials, contending: parties including ethnic group nunS'ant1. priests, and foreign members of nonfor this occasion, the outcome of
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government organizations-had all turned which promi&ed to be a turning point.

of old wood and wax, reports and other 15. chairs wouldbe
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They walked past the shelves of a library past rows of hardbound burgundy books of thick legal wooden chairs ranged against a white wall. One out

The passageway led to a.low-ceilinged court of carved, dark

vacant, because of a Justice who had just retired; and'that, as fate would have it, would bring the Court's final decision to a stunning tie. What brought this scene together was the cburt Justice himself, Isagani Cruz, whose reputation: as a .a former Supreme had

earned him a seat in the tribunal more than a decade :baCjk, when President Corazon Aquino at the beginn}ng of a new democraticgovernmerit peisona,lly chose him. He served as Justice for eight years. Now retired, and at age 74; he was pleading his case. ?efore peers who had followed him to a seat on the country's most revered court. But this did not guarantee him an advantage, because he had and how Justices had deliberated on controversial cases. This particular case laid bare the quest for national patrimony, in an attempt to define a land's origins and whom the land was life itself. Cruz was asking the Court to outlaw certain 8371, otherwise known as the Indigenous Peoples Rights Act of 1997, or IPRA . by its popular acronym. He questioned the cultural communities being given rights to claim ancestral domains that. consisted of natural' resources; forests and bodies of water, burial and worship .grounds. His petition, filed in September f998, attracted 112 "mtervenors," parties 78 made it a treasure for people to of Republic Act No. some feathers on the Court while working on a book, Res Gestae, ontheCotirt's brief-history

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that wished to have their suppott of the ethnic

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p?ints put across against the petitioner and in .

Some were themselves part of the minority that were temporarily galvanized into. unity by the petition. Cruz's claim that IPRA violated the . . . '.' ; provoked a highly .cl:iarged debate that reached deep into the birth of this country, back to its c<?lOP;ial past when Spanish explorers arrived and began the' religious evangelization of varied and scattered tribes throughout the .A.mong the lawyers in the gallery, it drove a wedge between those who Regalian Poctrine . fast to the . . . inherited from the colonizers, and others who immemorial. THE. PRINCIPLE behind "native title" concept was borne out in a US the virtue of a.native's land title as his ancestral right since time
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Supreme Court decision in 1.909, back when the Philippine Islands were an Ameri.cEm colony, when an Ibaloi named Mateo Cari:ii.o from Benguet province (of which Baguio was a He a customary ownership of a parcel of land in dispute. title to prove it was his, and it was on that

basis that the American court hilfided him victory, setting what should have . been a,precedent. Thatruling became known as the Cari:ii.o doctrine, which neither US courts later, the independent Philippine courts, ever reversed. Unfortunately, ti;te years, it was set aside to serve vested political and economic . :. . wish to s,tress .in all sincerity that they do not in any way disdain or patronize the indigenous cultural communities and the indigenous are part no intention of depriving
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prayed to the Court, adding that the suit had of their traditional rights. us. We are one people united although diversified. be recognized and observed under the
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"Irifact, they came What. seek simply is Constitution that . . . rules us .. . down to was the wide of ancestral

, definition of land and what this case boiled

nl'!ttiral resources buried and scatteredamong a across the country. The Philippines had an they had remained largely out of reach until
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abunciance of these resource5;.

OUR RIGHTS, OUR VICTORIES: Landmark Cases in the Supreme <;:curt

then, given the stigma that mining and sucli extractive activities had earned over four centuries of colonial rule and plunder. Those supporting the pillars of IPRA a8sumed that front. His partner in the petition, Cesar Europa, was a lawrer from in Mindanao with mining companies in his roster of clients.
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had: the
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thumbprint of the powerful mining industry that may 'have put him up as a City She

But it was nothing of the sort, sailt Barbara Migallos she was still Ia senior partner of law firm run by who personally knew Europa and asked in the plea to the Supreme Court. Migallos wo'uld later open her own

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an

was Cruz's qo-petitioner irl the case. It had been her idea, she clairp.ed, when

Senator

Rocq,

as well to back Cruz as petitioner would. disclose fuat she was


t

had been a lawyer fur the Pnilex mining company in Benguet, in the province adjacent to Baguio City-although she would claim that
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filing,.the case. Philex had built afavorable record in community c.ievelcipment, she would say, and she believed in what she called "responsible mining;'' That aside, she was perplexed by IPRA and its powers; something had to / . . . be done. Justice Cruz and Migallos had been family friends in the tight Manila

suburban community where. she grew up: It had ocq.trred to her that Cruz, having just retired from the Supreme this case to court. IPRA, signed into law in October 1997 and set into effect .the following month, apparently came too suddenly for her. "It was in<.e said. "Honestly, I don't remember any discussions went a little bit too far. It was too culmination of a long struggle toward the crafting of
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had the name and stature to bring

she IPRA

it.. :. I have no issues with

the IP.,They've been oppressed and they are eptitled to

The respondents did not see it in the same light. The IPRA, they felt; was the binding doc-Ument,
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like a Magna Carta. For them, it was about time. The original the years-had been relegated to the fringes; isolated, and politically weakened in a modern, world.

of the . archipelago-an estimated 110 ethno-linguistic tribes, perhaps diminished over "

But departing from its 1935 version, the 1987 Constitution had opened new avenues for cultural communities, and NGOs helping different ethnic . . ..
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groups With. strategi,zin:g tirged

formulation of a bill to protect their rights,

leading to the creation of the Conmrlssion on Ancestral Domain, whichin turn led to the IPRA. . . . . THE IPRA cultural ..

was draWn. up

to

and promote the rights of "indigenous peoples" within the framework of the

ConstitutiQn and of national. unity, empowered by the quasi-judicial National Commission on Indigenpus Peoples (NCIP) that Atty. Candelaria
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was representing at the court hearing. The NCIP was also one of the main along with to The NCIP has the power native title,
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of Environment and Natural before IPRA was passed.

Resources (DENR), which had ,issued certificates of ancestral domain claims

to issue government's fot:mal recognition of a


and official Torrens title given to private
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from the

and !llienaJ:>le agr,icultural lands. ''Ancestral land" pertains to land occupied by clans, and families that woulii have to show proof of ownership (as in the case of the .<;.:arifio doctrine); a a community and where happen, to stand. and seeking some harmony between the natio:r;1allegal system and tribal customary laws a different kind of understanding," said Atty. Leonen,. who fought for IPRA and was one of the lawyers representing the intervenors. 1'These two conflicting worlds made our work interesting." .brought on by the 'American colonial government in the early 20th century taught Filipinos tci declare and claim land ownership, pay taxes, and show evidence of possession,,.setting aside the early customary laws of the tribes .. A erupts so needs property is in dispute. anyone claiming to own a piece of land may office by paying taxes, revenue that may accept it without knowing or caring if the declare it at the munici:Pal is communal, one that belongs to of the mining and timber concessions just so

' surveys according to customary laws before requ'iririg .proof and conducting
approying the Certifi(:ate 9f A.ncestral Land Title that moves on to the Land Registration Authority for

The NCIP came into t'Q.e picture to bring some order to the process,

the rgistration of deeds,

thereby following the


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VUl< l<J.I..::llnli:l,UUl< V 1'-.,...lUl<l.Ci:); .LCII1CllilOI1C \....OSSSUl Ule

\.A>U!t

standard procedure for acquiring land. The DENR turned over responsibility for this

process w the NCIP from

its official capacity of overseeing ccm.cessions for timber or mining, which sometimes covered areas claimed as ancestral domains. The department had had to arbitrate between bus/ness interests aJJ,d the rjghts of the tribes occupying mostly the mountain regions, thus creating a system of verifying claims through maps and .. before issuing certificates. More1 than 60 pereent of indigenous peoples live'in Mindanao, the big

.southern island group that had seen bloody conflicts with the Muslims and the marginalization of the lumad, its aborigin:al inhabitants. It is als(dn Mfndanao where huge untapped natural resources lay, attracting bi.g mining .and provoking confrontation and controversy. The right to ancestra'l. domain, as stated in the IPRA, defines: territories as "including the spiritual and cultural bonds" serVe as the material bases of their cultural integrity." It then gives the right to develOp lands and natural resources, to indigenous stay in their territories, to regulate the entry of migrants, to c1aiin parts of reservations, to resolve conflicts, among other provisions that tribes back what they had lost. HOWEVER, THE petitioners thought this . was all too grandand overwhelming, offsetting the of the country at They believed that.alllands (except those that were private and agricultural),. the trees, _the earth, the minerals, the waters and its marine life belonged to no one but the government. This conjured the very image of Spanish colonizers voyaging the name of the King, the root of the Regalian doctrine, the ]tira Regalia. To give them away under the IPMs provisions was unconstitutional, they said. It would be tantamount to transforming ancestral domains into something private in nature, depriving the government of its territorial powers. They said . . . it betrayed Section 2 of Article XII on l)le national .economy and patrimony of the 1987 Constitution, which stated that all lands
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the tribes possess; its

con:ept of ownership "sustains the view that ancestral an,d all resources ..... shall

groups a status equal to that of the Christian majority. The IPRA was giving the

for

conquests centuries back, who chiitned land on which they staked the cross in

?f public domain were

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owned

bY the State and aU it:S natural resources under its full control and
the during that four-hour long se,ssion in Cr\1z mliy not have entirely convinced the Justices of
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supervision.

The first to speak


Bagliio., former enough: One of them,
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his .stand. There would 'be . .


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tension, although the Justices were courteous Mendoza, did not think there was an actual

controversy per se in this meaning that no one had been aggrieved. The . ' ' . petitioners were nei.ther mming concessionaires, nor were the respondents property owners. And it wo.uld l>e for that reason, partly, that he would vote . . ' . . against the petition,.short of saying they were arguing on theoretical grounds.
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Justice Mendoza said;


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connection with the rights given to the indigenous


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.peoples with respect; to


o
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resources, it seems to me to be limited only to


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granting them priority rights hut in no case does it say here that the national . goverm:nent is going t? claims." cru'z reiterated that the IPRA had too many ambiguous provisions, and the government could not risk is an i:roplementation of ll;' through loose interpretations. ' provision in order to correct a historic, Another Justice, Leomi;rdo Quisumbing, asked: "Is it not a fact that this law I shall say, mistake of the: c,olonizer in this country? ... If you are now going to consider this law as uncmistitutional, would we not in fact be reversing the
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or abdicate its jurisdiction over mining

trend of history and continue to commit injustices against our brothers who are the cultural minorities?" . See!king reprieve from: thd head of the court, Hilario Davide, Jr., who had . . . ' in the commission on patrimony for the drafting of the 1987 Constitution, Cruz asked in appeared to be belittling
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"Is there a question, Mr. Chief Justice?" Cruz


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Quisumbing's remark.

: . .' After some minor jousting, the Chief Justice gave Cruz an extension of his o:n the floor. Justice Panganiban wanted to make clear the issue: . . . ' .th.e Regalian doctrine was.yle tradition studied in every law school. Was this now going to be overturned? the NCIP and the;intervenors are putting something new to my mind.
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They. say they are not asking for a State grant, neither are they usurping public
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OUR RIGHTS, OUR VICTORIES: Landmark Cases in the Supreme Court


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land whether agricultural or otherwise, they are merely clauning and this law
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now recognizes their claim that they have already titles to these domains and lands even before the Spaniards came here, even befote the. Americans came here, even before this doctrine was embedded in our laws,"' Panganlban said, Cruz's ace was that he had the Solicitor General practically on his side, whose turn it was to speak. forward by tht petitioners. ' Taking the floor, Solicitor General ru!;ardo Galvez said that he foresaw a conflict between the IPRA and Article XII of the Constitution on national patrimony, which needed some "legal showed, so far, But the deh'beration Cruz and his party had failed to distinguish the deftniti:on highly Solicitor General, being government's

top lawyer, to be

under
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practice for the on issues put


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of ancestral land which was private in nature.from ancestral (icimain which was communal. Crl}Z and Galvez agreed that DENR should not be deprived of especially since the jurisdiction over natural resources, specifically minrng claims, the most sensitive and controversial aspect of this entire Philippine Mining Act had been signed into law in 1995. Galvez speculated that "There will come a time when practically of the Philippines shall be declared part of the and that fall within. the 80 percent of the country's natural resources would

same bracket. The DENR, which the Solicitor General was supposed to be representing for the argument, had so far issued certificatetitles of 2.5 m-illion hectares-a figure, he said, that could rise to about 10 million hectares or onethird of the country's total surface of 30 million hectares. "That is.what we fear," he said. Justice Panganiban then asked: "Mr. Solicitor Genera)., can I then clarify your point? You are willing to concede ownership of ancestral as what is involved is only ownership of public agricultural land?" . . Galvez: ''Your honor, that is our theory." Panganiban: "But not natural resources, inland waters, coastal areas, or forests?" Galvez: "Yes, your honor, that is our stand." Under questioning from Justice Mendoza, Galvez said that the IPRA did
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insofar

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not; "confer ownership" lands, hold

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the properties, but that the indigen'ous people

were given priority to them. "The law does not say they are the owners of these simply says that they have the right to claim ownership," limited to the mines. agricultur.allands, not to areas :where the government needed to maintain a . 'Fhe Solicitor General, ririsyd the prospect of the tribes the . . country, although the .idea far-fetched. It appeared that his strategy was
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to ensure that the and

he

would keep its hands on the natural resources, in catching the attention of some of the Justices who might image of seeing a minority of the country taking
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have. been disturbed by

an . enormous chunk of the country. back ., . . :

WHEN IT was Atty. Candelaria's turn to speak on behalf of the NCIP, he knew
he was up against
' 1. . :

lawyers, and any outcome could also weigh

his' hands. Trained by the,Ateneo de Manila University law school and its human righ.ts center, he .had read and studied for this hearing for two months, putting his heart inti> the.unde,rstanding of an enormous task. . .
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In The ofNations.arid .the New World, published in 1989 in Canada where . Law . material thatwotild be the basis for his arguments. It was a book histories of the Indians of America, of Australia, among others. From these the IPRA was

he took up his masters ofla'W at the University of British Columbia, he found the that traced the growth of the heritage of various peoples, despite what outsiders thought 'of them. It provided the Inuits of Canada, and'

profiles, he extracted experiences similar to those of Filipino ethnic groups. diSpelled :. the notion of a tribal rightfully restoring the their of cultural communities and giving credence to

laws. During the colonial past, they were thought of as inferior,

the white men exercising their power of sovereignty by casting them out of . : ' their land and reducing tliem.to mere inhabitants of enclaves. Standing hefore the he was reminded of a movie that had touched him emotionally, that made him see the Philippines as having gone through historical demise of the;South American country: The Mission, where Jesuit trying to tribe from the greed and threats of petty colonial officials and bounty hunters.

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OUR RIGHTS, OUR VICfORJES: Landmark Cases in the Supreme Court'

The meaning of ancestral domain, he said, could not be separated from the mineral resources that the domain posst<ssed. Justice Panganiban asked facetiously: "How deep? Until the core of the earth? Until the other side of the earth?" Du:rjng that time, that era they called . . . "since time immemorial," before the Spanish came to the Philippines the 16'h century, "the tribes were only thinkins of their right to hup.t, to plant, to fish," Panganiban said. "Why should we now
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what they
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have in m'ind

at the time tliat they initially possessed these properties, which are mineral resources? Why should we not limit then the concept of ancestral lands?" . . . . -. . Justice Mendoza joined in, saying that the Constitution did not grant the private concept of ownership to ancestral domains. "It is
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mcir habitat
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from which they draw their needs for daily life." . Once again, Candelaria reiterated the difference the

.. . land (for which

proof would have to be shown to acquire ownership) and,domain,'(for which would be given priority rights). Ancestral domliin would t;onstitute It was their cultural integrity that w9uld'be "anch.Q'red in the very. land that they claimed indeed," he told the covrt: "Removt; it and then it would destroy [them]." The IPRA law, he emphasized, aimed to reconcile ancestral . . jurisdiction. The NCIP, however, woul_d have. to conduct what was claims . ownership as communal, not\ in the way outsiders would.claim prope_rty. .

with other policies of the government, without depriving any other agency of

known as '

Free and Prior Informed Consent,a set of key guidelines thatwotildhave to be implemented among cultural communities pefore allowing- mining or timber concessionaires to operate in the ancestral domains. Justice Panganiban asked: "In other words, the [IPs] do not contemplate a state within a state?" Candelaria answered: ''I think that is far from the argument being raised, as far as the issues are concerned today,.your honor.'' The arguments were running past noon and one of the last to be heard was Atty. Leonen, standingfor the intervenors. I:Ie the land laws, the property rights of studied it all, the histo'ry of and their of Law of the

He was among a small group of students at the

University of the Philippines mentored by American professor 86

aweR Lynch,

'_.)

an expert on anthropological resurrected. the Carino national laws had made an as he called them ..

Seated in the gallery that day, Lynch had in his class and taught his students how on the indigenous people, the "invisible

Havi,rig traveled around, the country to be with the tribes when he was a paralegal group io'help them, Leonen spoke of them sentimentally, putting the. tribal world and highlighting the roles of when the larger concept of a nationalist framework jndigenous peoples as ancestors of the nation

Filipinos [were] inQ.ige:nous."

.His position was quite raqical, suggesting that ancestral domains be deClared private in nature-';V'hich could actually mean calling for a change of laws t}lat would confer Leonen argued to indigenous communities. 'the ttibes were "more burdened with their ancestral

than people who co,me from the outside," owing to the practice of their custO:tl;lS that sometimes resulted in tribal wars. The experiences they had to go through in accomplishing' the . . steps for a certificate or a title led to some distrust, as wa5 likely to happen when it came to claiming land, leading them to be.lleve that land had beoomeia . . . : . commodity for economic survival. of ownership of properties?" Leonen: "Yes, Panganiban: "S(l now you want the local laws, because foreign natural resources are unknown
to

these people who had been taken advantage of, to dispossess them of these

He .held on to the arriuiets . ' . the tribal folk had given him that morning
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before . . . . the session; he they .l:J.ad

. all the luck he could get. If the morning light


of how the Justices would decide.

shining on thecourt during the hearing was a certain kind of

it now

THE COURT would be spliniow.n the middle over this case, with seven voting for and seve'rt Without a majority ruling, the Court had a had retired, the Court voted again. And again, the , . second chiince to deliber'ate'on the matter. Without waiting for another Justice to fill the' seat of the one result a deadlock. Under the rules of

the petition was dismissed.


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OUR RIGH'IS. OUR VICTORIES: Landmark cases in the Supreme coun .


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land whether agricultural or otherwise, they are now recognizes their claim that they have already tides to these

and

law

lands even before the Spaniards came here, even before the. Americans came here, even before this doctrine was embedded in our laws," Pangani,ban said, Cruz's ace was that he had the Solicitor General practically on his side, whose turn it was to speak. It forward by tht petitioners . ., Taking the floor, Solicitor General Ricardo Galvez said that he foresaw a conflict between the IPRA and Article XII of the Constitution on national patrimony, which needed some "legal showed, so far, But the deliberation Cruz and his party had failed to distinguish the definition highly Solicitor General, being government's tbp lawyer, to be under
'

.,.

practice for the on issues put

of ancestral land which was private in nature.from ancestral9cimain which was traditionally communal. and Galvez agreed that llle DENR should not be deprived of jurisdiction over natural resources, specifically minrng claims, the most sensitive and controversial aspect of this entire exercise, especially since the Philippine Mining Act had been signed into law in 1995. Galvez speculated that "There will come a time when practically
'

of the Philippines shall be declared as part of the ancestral 80 percent of the country's natural resources would

and

ran within. the

same bracket. The OENR, which the Solicitor General was supposed to be representing for the argument, had so far issued certificatetitles of 2.5 .million hectares-a figure, he said, that could rise to about 10 million hectares 'or onethird of the country's total surface of 30 million hectares. "Thai is.what we fear," he said. Justice Panganiban then asked: "Mr. Solicitor can I then clarify insofar your point? You are willing to concede ownership of ancestral as what is involved is only ownership of public agricultural land?" . .. Galvez: "Your honor, that is our theory." Panganiban: "But not natural resources, inland waters, coastal areas, or forests?" Galvez: ''Yes, your honor, that is our stand." Under questioning from Justice
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Galvez said that the IPRA did

_ ....
not; "confer ownership" lands,

-:-- ........

---------

the properties, but that the indigen'ous people

given priority to them. "The law does not say they are the owners of these simply says that they bave the right to claim ownership," limited to agriculturallandsj not to areas :where the government needed to maintain a hold over the mines. 'FheSolicitor General,rirlsyd the prospect of the tribes
.
.

country, although the.idea


.
.

'

far-fetched. It appeared that his strategy was

to ensure that the government,would keep its hands on the natural resources, and

he

in catching the attention of some of the Justices who might image of seeing a minority of the country taking

have.been disturbed by
' '

back an enormous chun.k of the country.

WHEN IT was Atty. Candeiarla's turn to speak on behalf of the NCIP, he knew
he was. up against

..

lawyers, and any outcome could also weigh

Trained by the,Ateneo de Manila University law school and its human righ,ts center, he .had .read and studied for this hearing for two months, putting his heart into the.unde,rstanding of an enormous task. . . In 'f!te Law ofNrJti.ons. and the New World, published in 1989 in Canada where thatwould he the basis for his arguments. It was a book histories of the Indians of America, aporigines of Australia, among others. From these the IPRA was

he took up his masters o.f'Jaw at the University of British Cqlumbia, he found the that traced the growth of the heritage of various peoples, despite what outsiders thought 'of them. It provided the Inuits of Canada, and'

profiles, he extracted experienceS similar to those of Filipino ethnic groups. dispelled :. the notion of a tribal rightfully restoring the of cultural communities and giving credence to

their laws. During the colonial past, they were thought of as inferior, . . . the white men exercising their power of sovereignty by casting them out of their iand and reducing mere inhabitants of enclaves. Standing before the court, he was reminded of a movie that had touched that m'ade hiin see the Philfppines as having gone through him historical demise of tlie;South American country: The Mission, where Jesuit trying to tribe from the greed and threats of petty colonial offiCials and bounty hunters.

..

85

OUR RIGHTS, OUR VICTORIES: Landmark Gases in the Supreme Cotu\

It was a victory of sorts for the indigenous peoples, for it meant.that.the


IPRA was to stay. But it also revealed populat misconceptions about and deep apprehensions over the rights of ethnic groups, and showed how coJi!tised and divided the nation was over its own identity. Postscript
As ofFebruary 2011, the l'jational Commission on Indigenous Peoples recorded an estima of 4.3 "millionheci:an:s of ancestral lands and don;tains combine.d, with 912,395 "rightsholders" oftitles. Out of that figure, 889,794 hectares have been registered to the benefit of190,491 rightsholders

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..

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