Advocate's Overview: Does IPRA allow ownership of natural resources to IPs?

By ARTHUR L. ALLAD-IW

Last week, I discussed in this column the concept of the Regalian Doctrine which is incorporated in Sections 2 and 3 of Art XII of the 1987 Constitution. These provisions reiterate the State’s ownership over natural resources even if these are located in privately owned land.

With the RA 8371 or the Indigenous Peoples Rights Act, passed on October 29, 1997, the said law recognized the native title of indigenous peoples. Indigenous peoples ownership of their ancestral lands and domains are titled through the instruments known as Certificate on Ancestral Land Title (CALT) and Certificate on Ancestral Domain Title (CADT).

There is a very basic question however: Did the IPRA recognize ownership of indigenous peoples of the natural resources located in their ancestral lands and domains?

It is interesting to go back to the Supreme Court decision of December 6, 2006 on the constitutionality of RA 8371. The 14 SC justices were equally divided and no clear majority for either side, the case was re-deliberated. And since the vote remained the same, the petition to declare the IPRA unconstitutional was dismissed. Therefore the law became constitutional.

The SC Justices had various positions regarding the question. Justices Kapunan and Puno claimed in their opinion that the IPRA law does not allow ownership of natural resources. Kapunan claimed that Section 3 (a) of the law 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 domain. In other words, the said section serves only as a yardstick, which points what properties are within the ancestral domains. It does not confer or recognize any right of ownership over natural resources to the indigenous peoples. Its purpose is definitional and not declarative of a right or title. Justice Puno (now Chief Justice) opined that there is nothing in the law that grants to IPs ownership over the natural resources within their ancestral domains.

Justices Panganiban and Vitug opined that the IPRA law allows ownership of resources to IPs. Panganiban claimed that since RA 8371 defines ancestral domains as including the natural resources found therein and further states that indigenous peoples own these ancestral domains, then it means that the IPs can own natural resources. Vitug added that IPRA effectively withdraws from the public domain the so-called ancestral domains covering literally millions of hectares. The notion of community property would comprehend not only matters of proprietary interest but also some forms of self-governance over carved-out territory.

Since the constitutionality of IPRA however was decided based on the Rules of Court as they are equally divided, it failed to introduce a dominant opinion as to the ownership of natural resources in the ancestral domains of the IPs.

But what does the IPRA law say? It is clear that Section 57 does not grant absolute ownership of natural resources to IPs but it provided priority rights in the utilization and preference or first consideration in the award of privileges. In this case, therefore, it reiterates that the owner of the natural resources, including the minerals is the State.

There was a resolution issued by the NCIP commissioners to the Balatoc tribe of Kalinga. The tribe was given a priority rights for the utilization of their natural resources. Their organization tried to apply to the Mines and Geo Sciences Board (MGB) a permit to mine the area after the permit of the Batong Buhay Mining Corp. expired. Their application was denied by MGB and instead, a permit was granted to another corporation. It therefore shows that the State as owner of the resources has the right to dispose these. And it seems that even the IPRA reiterates the Regalian Doctrine.

I am hopeful however that a directly affected indigenous group would someday file a case to the Supreme Court as to their ownership to the resources in their domain. And it could be with the said case that the ownership of resources in the ancestral domains of IPs would be clarified. I still believed that the ownership of IPs on the resources in their domains is a correction of historical injustice brought by the colonizers and upheld by post colonial administrations. #