Republic of the Philippines

Department of Environment and Natural Resources

OFFICE OF THE REGIONAL EXECUTIVE DIRECTOR
Region XII, Aurora Street, City of Koronadal,
South Cotabato 9506 Philippines
Tel. No. (083) 228-6226 Telefax No. (083) 228-6225
E-mail add: red_reg12@yahoo.com/website: r12.denr.gov.ph

MEMORANDUM

TO : THE PENR OFFICER-SARANGANI

Alabel, Sarangani Province

FROM : THE REGIONAL EXECUTIVE DIRECTOR

DENR XII, Koronadal City

SUBJECT : REQUEST FOR LEGAL OPINION ON THE CLAIMS OF HEIRS

OF MARTIN MODIA IN CONFLICT WITH SOME RESORT
DEVELOPERS IN TINOTO, MAASIM, SARANGANI PROVINCE

DATE ; August 1, 2023

For consideration is the letter from the PENR Officer of Sarangani requesting
for legal opinion relative to the claims of Heirs of Martin Modia Clan represented by
Benjamin Martin Inantay which is in conflict with the claims of multiple resort owners
operating within the disputed area.

The conflict esteemed when an anonymous call was received by the

Protected Area Management Office (PAMO) on the alleged unauthorized
construction of resort in the vicinity of Tampat Point, Tinoto, Maasim Sarangani
Province. An investigation was conducted on the matter and it revealed the following
facts;

1. The cottage owners, in their argument, said that they had already purchased
the beachfront properties from the members of the Martin Modia Clan through
a Waiver of Rights and Quitclaim (herein attached);

2. Romeo Lawa Martin, one of the heirs of Martin Modia, claimed that the area
where the illegal structures were built is within the claims of their clan as
evidenced by a Certification from the Land Registration Authority, signed by
Fely Escobar on the ownership of the latter under GSS-12-000520-D together
with the indicative map of the ancestral land and waters;

3. Notice of Violation was issued by the PAMO to the owners of the structure on
the ground that they did not secure the necessary clearance from the PAMB.
The owners submitted their response with the intent to comply, however, the
 move by the owners was opposed by the members of the Martin Modia Clan
claiming that the area is within their claim;

4. A certification from the Community Environment and Natural Resources Office

Kiamba, signed by CENRO Abdul Cariga, that the area is classified as
“timberland”.

ISSUES:
With these circumstances, the following issues were raised for resolution;

I. WHETHER OR NOT, THE ISSUANCE OF THE NOTICE OF

VIOLATION BY THE PAMO TO THE COTTAGE OWNERS IS IN
PLACE;

II. WHETHER OR NOT, THE CLAIM OF THE MARTIN MODIA CLAN AS

INDICATED UNDER THE INDICATIVE MAP OF THE ANCESTRAL
LAND AND WATERS OF THE CLAN WILL PREVAIL OVER THE
PROTECTED AREA BOUNDARIES SET UNDER THE ENIPAS LAW;

DISCUSSION:

On the first issue of whether or not the issuance of the notice of violation by
the PAMO to the cottage owners is in place. This office is in the AFFIRMATIVE.

It can be recalled that on January 17, 2022, this office received a formal
complaint letter from Romeo Lawa Martin, raising the concerns about the alleged
illegal structures being built in the area.

The first notice of violation issued by the PAMO dated October 2021 is
anchored on the ground that the cottage owners build structures within the protected
area without securing first the PAMB clearance required under Section 20,
paragraph (n) of the bENIPAS Law. The second notice of violation dated May 31,
2022 was issued to the cottage owners for non-compliance to the first notice.

It is worthy to reiterate that, the law empowers the Protected Area

Superintendent (PASu) to enforce rules and regulations in the protected area. Under
Section 11-B paragraph (f) of Republic Act 11038, which states:

“Enforce the laws, rules and regulations relevant to the protected area.
Commence and institute administrative and legal actions in collaboration with
other government agencies or organizations, and assist in the prosecution of
offenses committed in violation of this Act;”

This is further elaborated under Rule 11-B.3 of DAO 2019-05 or the IRR of RA
11038 which reads:

“exact and collect administrative fees and fines, for violations of Section 21 of
the NIPAS Act, as amended, other related guidelines, rules and regulations
on protected areas and biodiversity conservation.”
 The cottage owners (respondents), with their intent to comply and correct their
actions as required under the law, is barred as the Heirs of Martin Modia Clan
claimed ownership over the area where the structures were built. Based on the
attachments submitted by respondents, a certain Jerum Martin Lawa, member of the
Modai Martin Clan who is a resident of Purok 6, Tampat, Tinoto, Maasim, Sarangani
Province, through a Waiver of Rights and Quitclaim, has transferred his right to
Carolina Monta Sabarita, also a member of the IPs.

Pertinent portion of the said document which reads,

“The TRANSFEROR is the MEMBER OF THE MODIA MARTIN CLAN

in Tampat, Brgy. Tinoto, Maasim, Sarangani Province covered by
CERTIFICATE OF ANCESTRAL LAND TITLE NO. R12-GSC-0809-00026,
which was awarded to our clans by the National Comission of Indigenous
People on August 14, 2009, more described as follows;

“A PARCEL OF LAND SITUATED AT SITIO TAMPAT SHRINE,

BRGY. TINOTO, MAASIM, SARANGANI PROVINCE, CONTAINING AN
AREA THIRTEEN THOUSAND EIGHT HUNDRED SIXTY SEVEN (13,867)
SQUARE METERS, more or less, being a portion of the parcel of land known
as CERTIFICATE OF ANCESTRAL LAND TITLE NO. R12-GSC-0809-
00026.”

This office have relied on the validity of the said submitted document since on
its face, the same was valid as it was signed by the parties and notarized by a notary
public.

In the case of Garcia v. Velez (G.R. No. 177181, September 22, 2010), the
Supreme Court emphasized that a notarized document enjoys a presumption of
authenticity and due execution. The Court held that the document's notarization
carries a high degree of credibility and should not be lightly set aside in the absence
of strong and convincing evidence to the contrary. In cases of dispute, the court may
still evaluate the document's authenticity and consider all relevant evidence
presented.

THEREFORE, the claim of ownership by the Heirs of the Martin Modia Clan
arising from the said document is not within the jurisdiction of this office but of the
regular courts and further, the notice of violation issued by the personnel of the
Protected Area Management Office is in place.

On the second issue of whether or not the claim of the Martin Modia Clan
indicated under the indicative map of the ancestral land and waters of the clan will
prevail over the protected area boundaries set under the ENIPAS Law. This office
holds a negative stance on the matter.

The IPRA Law and ENIPAS can intersect when there are ancestral domains
or ancestral lands of ICCs/IPs within or adjacent to protected areas. In such cases,
the application of both laws should be harmonized to respect the rights of indigenous
communities while ensuring environmental conservation. Section 7 of the ENIPAS
Law mandates the formulation of a Protected Area Management Plan (PAMP) that
takes into account the rights of ICCs/IPs, including their customary laws, practices,
and ancestral domains. The plan should ensure their participation in the
management and use of the protected area's resources.
Further, Section 13 of the same law states that, the ancestral lands and
customary rights and interest arising shall be accorded due recognition. The DENR
shall prescribe rules and regulations to govern ancestral lands within protected
areas; Provided, that the DENR shall have no power to evict indigenous
communities from their present occupancy nor resettle them to another area without
their consent; Provided, however, that all rules and regulations, whether adversely
affecting said communities or not, shall be subjected to notice and hearing to be
participated by members of the concerned indigenous community.

It is clear by the wordings of the law that the DENR is mandated to recognize
the rights of IPs and ICCs, provided however, that the latter, must demonstrate and
possess all the requirements under Section 8 of the IPRA Law which defines
ancestral lands as those exclusively and actually possessed, occupied, or utilized by
individuals or families belonging to ICCs/IPs since time immemorial.

Upon careful perusal of all documents submitted by both parties, we upheld

the validity of the documents submitted by respondents. On the other hand, the
Certification issued by the Land Registration Authority, the document itself, casts
doubt as the address of the Land Registration Authority based on the available data
in its website is “LRA Compound, East Ave, Diliman, 1101 Quezon City. There is no
office of LRA in the address “East Avenue cor.NIA Road” appearing in the document,
the name of the signatory was forged and no stamp for date released like other
formal communications from government offices. Further, the certification issued by
the National Commission on Indigenous People lacks information on the date the
application for CALT was submitted.

In a letter-reply dated April 26, 2022 signed Engr. G. Samaon, Assistant

Regional Director for Technical Services of DENR XII to the request Regional
Director Jeanne Anne M. Zoilo of NCIP XII on the projection of the surveyed plan of
Mr. Benjamin Inantay located at Barangay Tinoto, Maasim, Sarangani Province,
Parcels 4 and 5 overlapped with Sarangani Bay Protected Seascape (SBPS). This is
further strengthened by the certification issued by CENRO-Kiamba signed by CENR
Officer Abdul Cariga that the land in question is within “Timberland” per Land
Classification Map No. 2339, Project No. 47-L as certified by the Director of Forestry
on January 27, 1960.

In summary, the Heirs of Martin Modia's claim remains under consideration

until substantial evidence is presented to justify setting aside the established
boundaries of the Sarangani Bay Protected Seascape. Additional proof supporting
their claim would be necessary for further evaluation.

Finally, this office recommends for the lifting of the hold and abeyance on all
applications for PAMB clearance in the area.

ATTY. FELIX S. ALICER