04/02/2020
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MR. DAVIDE. That is exactly the reason, Madam President, why we will
leave it to Congress to make the necessary exception to the general law
on property relations.
MR. REGALADO. I was thinking if Commissioner Bennagen could give us
an example of such a customary law wherein it is the property rights and
relations that determine the ownership and the extent of that ownership,
unlike the basic fundamental rule that it is the ownership and the extent
of ownership which determine the property rights and relations arising
therefrom and consequent thereto. Perhaps, these customary laws may
have a different provision or thrust so that we could make the
corresponding suggestions also by way of an amendment.
MR. DAVIDE. That is exactly my own perception.
MR. BENNAGEN.
Let me put it this way.
There is a range of customary laws governing certain types of ownership.
There would be ownership based on individuals, on clan or
lineage, or on community.
And the thinking expressed in the
consultation is that this should be codified and should be recognized in
relation to existing national laws. That is essentially the concept. [106]
(Emphasis supplied.)
The intention to treat ancestral domains as private property is also apparent from
the following exchange between Messrs. Suarez and Bennagen:
MR. SUAREZ. When we speak of customary laws governing property
rights or relations in determining the ownership and extent of the
ancestral domain, are we thinking in terms of the tribal ownership or
community ownership or of private ownership within the ancestral lands
or ancestral domain?
MR. BENNAGEN.
The concept of customary laws is that it is
considered as ownership by private individuals, clans and even
communities.
MR. SUAREZ.
So, there will be two aspects to this situation.
This
means that the State will set aside the ancestral domain and there is a
separate law for that. Within the ancestral domain it could accept more
specific ownership in terms of individuals within the ancestral lands.
MR. BENNAGEN.
Individuals and groups within the ancestral domain.
[107] (Emphasis supplied.)
It cannot be correctly argued that, because the framers of the Constitution never
expressly mentioned Cariño in their deliberations, they did not intend to adopt the
concept of native title to land, or that they were unaware of native title as an
exception to the theory of jura regalia.[108] The framers of the Constitution, as well
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93/148
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