Conflict between Native Title and Regalian Doctrine

In Cruz vs. Secretary of DENR, G.R. No. 135385, December 6, 2000, the court upheld the
presumed constitutionality of the Indigenous People's Right Act (IPRA) after an unconvincing
split decision of 7-7. It is my opinion that the Court's decision cannot be a precedent. I will not
take the risk. Besides, one must not be content with the number of affirmative or negative votes
but must search the relative weight of each opinion of our honoured justices.
As a law student, I cannot I agree that ancestral domain and ancestral lands exists for the
exclusive ownership and possession of our indigenous people. Why? Are we not descendants of
pre-colonial Filipinos? If yes, then our right over the ancestral domains is the same as that of the
indigenous people. But our rights of ownership and possession have been complicated by a long
history of colonialism.
In all the justices of the Supreme Court, Justice Puno and Justice Panganiban provided a
historical backdrop to the issue of ancestral domain. If I understood correctly, there was a
different concept of native title and no concept of jura regalia in pre-colonial Philippines. Such
contemporary concepts came in the advent of colonialism. It is my contention that native title
and jura regalia must be understood within the paradigm of colonialism. Jura regalia is based
on European feudalism where the nobles have ownership over the land and the subjects are
tenants of the nobles. It is based on the European class system. When the Spaniards came to the
Philippines, they brought their feudal system and applied it. Thus, all conquered lands belong to
the King and the conquered people became subjects of the King and his conquistadors. It must
be noted that in order jura regalia to exist, there must be the element of conquest. Hence, in
Carino vs. Insular Government, Justice Holmes defined native title as the right of an
unconquered native over his land which was never subject to conquest. Therefore, by this
definition alone, our lawmakers and even the justices who chose to upheld the IPRA misapplied
the concept of native title and jura regalia.
Today, colonial powers take a different shape. Past colonial masters, especially the
Americans, no longer assert their claim over our territory but still maintained economics
influence over our State. The colonialism we have now is not the same. Consequently, we
should redefine the significance of native title and jura regalia in the absence of colonial
masters. So far, jura regalia transformed into the state's ownership over lands not held privately,
and over the natural resources of the land.

In effect, native title lost through colonialism was

restored to the formerly conquered people since there is no longer a colonial power. But the
native title is now vested in the state which, of course, includes the people. In my opinion, the
absence of colonialism merged jura regalia and native title. Being a democratic and republican

state, all of us, as people of the state, have a right over the benefits derived from lands not held
privately and the natural resources therein. When I say people, I mean to include the indigenous
people. It is my submission that the IPRA is unconstitutional on the ground that the sudden
transfer of ownership to the indigenous people deprived others of such fruits or benefits. The
IPRA also deprives non-indigenous peoples rights over ancestral domains. I do not see the social
justice in this since ancestral domain hold 80 % of our natural resources.
The constitutional provisions favouring the indigenous people are not contrary to the
provisions favouring the state's dominion. Our Constitution upheld the rights of marginalized
members of society including the indigenous people. However, our state owns public land and
the natural resources therein. Thus, it is the state's prerogative on how to distribute the fruits of
these resources to us and how such fruits extend to the marginalized. As the legal maxim says
that the law gives more to those who have less.

Moreover, the state did not deprive the

indigenous people of their native title but, as representative of the indigenous people themselves,
holds the native title. Simply put, the Constitution says that the state must take care of the rights
of the indigenous people by holding the title for them and the fruits thereof must directly be
enjoyed by these people. Therefore, the IPRA, in order to give more to those who have less, is
unconstitutional by bypassing other constitutional provisions on the state's dominion.
Since we blurred the line between jura regalia and native title, we must present other
issues that already exist and were not resolved? Did the indigenous people enjoy the benefits of
their land? Did they properly exploit and conserve the land granted to them? Did the state, in
the exploitation of natural resources, gave the profit and fruits of natural resources to the
indigenous people? Were the lawmakers right in directly granting ownership of the ancestral
domain to the indigenous people? I cannot resolve these questions. I leave them to the Justices.

--Prince E. Cataylo