Dissenting Opinion - 18 - G.R. No. 224469 Santiago M. Kapunan's Separate Opinion supports the conclusion that ancestral lands and domains are considered private lands which are not part of the public domain. 51 In fact, Justice Kapu~an further found it readily apparent from the constitutional records that "the framers of the Constitution did not intend Congress to decide whether ancestral domains shall be public or private property." Rather, they acknowledged that "ancestral domains shall be treated as private property, and that customary laws shall merely determine whether such private ownership is by the entire indigenous cultural community, or by individuals, families, or clans within the community." 52 But even granting that the ancestral domains are neither public nor private, the same still cannot be interpreted to mean that these domains are consequently outside the coverage of P.D. No. 705. Again, nowhere in the authorities cited by Justice Caguioa was it suggested that due to the "unique" character of ancestral domains, the prohibited acts committed are exempt from prosecution under the decree. been public land. Domains and lands held under native title are, therefore, indisputably presumed to have never been public lands and are private. xxxx In the Philippines, the concept of native title first upheld in Carifio and enshrined in the IPRA grants ownership, albeit in limited form, of the land to the ICCs/IPs. Native title presumes that the land is private and was never public. Carifio is the only case that specifically and categorically recognizes native title. The long line of cases citing Carifio did not touch on native title and the private character of ancestral domains and lands. xxxx The private character of ancestral lands and domains as laid down in the IPRA is further strengthened by the option given to individual ICCs//Ps over their individually-owned ancestral lands. For purposes of registration under the Public Land Act and the Land Registration Act, the IPRA expressly converts ancestral land into public agricultural land which may be disposed of by the State. The necessary implication is th,,t ancestral land is private. It, however, has to be first converted to public agricultural land simply for registration purposes. xxxx Thus, ancestral lands and ancestral domains are not part of the laml5 of the public domain. They are private and belong to the ICCs/IPs. (Cruz v. Secreta1y of Environment and Natural Resources, supra note 49, at 460-472. (Emphasis ours; citations and italics omitted) 51 Justice Kapunan stated in Cruz: The Regalian theory, however, does not negate native title to lands held in private ownership since time immemorial. In the landmark case of Carino vs. Insu{ar Gpvernment the United States Supreme Court, reversing the decision of the pre-war Philippine Supreme Court, made the following pronouncement: ... x x x A proper reading of Carino would show that the doctrine enunciated therein applies only to lands which have always been considered as private, and not to lands of the public domain, whether alienable or otherwise. A distinction must be made between ownership of land under native title and ownership by acquisitive prescription against the State. Ownership by virtue a of native title presupposes that the land has been held by its possessor and his predecessors-in-interest in the concept of an owner since time immemorial. The land is not acquired from the State, that is, Spain or its successors-in-interest, the United States and the Philippine Government. There has been no transfer of title from the State as the land has been regarded as private in character as far back as memory goes. In contrast, ownership of land by acquisitive prescription against the State involves a conversion of the character of the property from alienable public land to private land, which presupposes a transfer of title from the State to a private person. Since native title assumes that the property covered by it is private land and is deemed never to have been part of the public domain, the Solicitor General's thesis that native title under Carifio applies only to lands of the public domain is erroneous. Consequently, the classification of lands of the public domain into agricultural, forest or timber, mineral lands, and national parks under the Constitution is irrelevant to the application of the Carifio doctrine because the Regalian doctrine which vests in the State ownership of lands of the public domain does not cover ancestral lands and ancestral domains. (Id. at 1044-1046; Emphases ours) " Ce~ v. Semtary ofEnvfronment and Natuea/ Re.sou,ce,, ,upea note 49, at 1054-195 5. {,/' /7/