10/12/2019
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within their respective communities, as may be compatible with the national legal
system and with internationally recognized human rights. In this regard, it is fitting to
quote the Separate Opinion of Justice Santiago M. Kapunan in Cruz v. Secretary of
Environment & Natural Resources[64] on the constitutionality of Sections 63, 65 and
other related provisions, like Section 15, of the IPRA:
Anent the use of customary laws in determining the ownership and extent of
ancestral domains, suffice it to say that such is allowed under paragraph 2,
Section 5 of Article XII of the Constitution. Said provision states, "The
Congress may provide for the applicability of customary laws governing
property rights and relations in determining the ownership and extent of the
ancestral domains." Notably, the use of customary laws under IPRA is not
absolute, for the law speaks merely of primacy of use. xxx
xxxx
The application of customary law is limited to disputes concerning property
rights or relations in determining the ownership and extent of the ancestral
domains, where all the parties involved are members of indigenous peoples,
specifically, of the same indigenous group. It therefore follows that when
one of the parties to a dispute is a nonmember of an indigenous group, or
when the indigenous peoples involved belong to different groups, the
application of customary layv is not required.
Like any other law, the objective of IPRA in prescribing the primacy of
customary law in disputes concerning ancestral lands and domains where all
parties involved are indigenous peoples is justice. The utilization of
customary laws is in line with the constitutional policy of recogmzmg the
application thereof through legislation passed by Congress.
Furthermore, the recognition and use of customary law is not a novel idea in
this jurisdiction. Under the Civil Code, use of customary law is sanctioned,
as long as it is proved as a fact according to the rules of evidence, and it is
not contrary to law, public order or public policy. Moreover, the Local
Government Code of 1991 calls for the recognition and application of
customary laws to the resolution of issues involving members of indigenous
peoples. This law admits the operation of customary laws in the settling of
disputes if such are ordinarily used in barangays where majority of the
inhabitants are members of indigenous peoples.[65]
Likewise, unavailing is petitioners' contention that unresolved claims and disputes
between different ICCs/IPs groups, and those between ICCs/IPs and non-ICCs/IPs
should fall under the jurisdiction of the NCIP. In this regard, the Court shares the view
of Justice Perez:
That the proviso found in Section 66 of the IPRA is exclusionary, specifically
excluding disputes involving rights of IPs/ICCs where the opposing party is
non-ICC/IP, is reflected in the IPRA's emphasis of customs and customary
law to govern in the lives of the ICCs/IPs.
elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/63044
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