04/02/2020
E-Library - Information At Your Fingertips: Printer Friendly
the ancestral domains will result during the delineation process. The mere fact that
Section 3(a) defines ancestral domains to include the natural resources found
therein does not ipso facto convert the character of such natural resources as private
property of the indigenous peoples. Similarly, Section 5 in relation to Section 3(a)
cannot be construed as a source of ownership rights of indigenous people over the
natural resources simply because it recognizes ancestral domains as their "private
but community property."
The phrase "private but community property" is merely descriptive of the
indigenous peoples' concept of ownership as distinguished from that provided in
the Civil Code. In Civil Law, "ownership" is the "independent and general power of
a person over a thing for purposes recognized by law and within the limits
established thereby."[122] The civil law concept of ownership has the following
attributes: jus utendi or the right to receive from the thing that which it produces,
jus abutendi or the right to consume the thing by its use, jus disponendi or the
power to alienate, encumber, transform and even destroy that which is owned and
jus vidicandi or the right to exclude other persons from the possession the thing
owned.[123] In contrast, the indigenous peoples' concept of ownership emphasizes
the importance of communal or group ownership. By virtue of the communal
character of ownership, the property held in common "cannot be sold, disposed or
destroyed"[124] because it was meant to benefit the whole indigenous community
and not merely the individual member.[125]
That IPRA is not intended to bestow ownership over natural resources to the
indigenous peoples is also clear from the deliberations of the bicameral conference
committee on Section 7 which recites the rights of indigenous peoples over their
ancestral domains, to wit:
CHAIRMAN FLAVIER. Accepted. Section 8[126] rights to ancestral domain,
this is where we transferred the other provision but here itself --HON. DOMINGUEZ. Mr. Chairman, if I maybe allowed to make a very
short Statement. Earlier, Mr. Chairman, we have decided to remove
the provisions on natural resources because we all agree that that
belongs to the State. Now, the plight or the rights of those indigenous
communities living in forest and areas where it could be exploited by
mining, by dams, so can we not also provide a provision to give little
protection or either rights for them to be consulted before any mining
areas should be done in their areas, any logging done in their areas or
any dam construction because this has been disturbing our people
especially in the Cordilleras. So, if there could be, if our lawyers or the
secretariat could just propose a provision for incorporation here so that
maybe the right to consultation and the right to be compensated when
there are damages within their ancestral lands.
CHAIRMAN FLAVIER. Yes, very well taken but to the best of my
recollection both are already considered in subsequent sections which we
are now looking for.
HON. DOMINGUEZ. Thank you.
elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/36882
97/148
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents