Lands of the Public Domain

All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wil dlife, flora and fauna, and other natural resources are owned by the State. With the exception of  agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding tw enty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, i rrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of  minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of  the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain m ay be further classified by law according to the uses to which t hey may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public publi c domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public publ ic domain which may be acquired, developed, held, or leased and the conditions therefor. The Congress shall, as soon as possible, determine, by law, the specific limits of  forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas.

Prior to joining a land management and property rights team/project, I had no idea that lands in the Philippines have official or legal classifications and that they cannot be easily reclassified into something else. I knew that a person cannot own a mountain, but really I could not appreciate and understand the reasons behind that. I did not even care about that thing. Since I'm now into this land thing, I have to know and I want to share something about land classification. If I could go further, I want to consider discussing about the implications of  such classifications against the reality. The 1987 Constitution of the Philippines, the supreme l aw of the Philippines stipulates that lands of the public domain are classified into: Agricultural; Forest or timber; Mineral; and National parks. As to how they came up with such classifications, I do not know. It should be noted that all lands of the public domain are owned by the state. Only lands classified as agricultural are alienable and disposable, or those that can be owned privately by Filipino citizens. It is the Congress that sets the limits and boundaries of forest lands and national parks. It is also by an act of Congress that such limits can be increased or diminished. The Philippines already has a Land Classification Map - the first and the last so far, made ages ago - that shows 50% of the lands of the public domain are forest, 47% is alienable and disposable, and 3% is unclassified. If I'm not mistaken, this was made in the 1930's. On the environmental side, the Philippines has less than 20% forest cover (there should be biodiversity in an area to be considered forest). Interesting, right? A land classification map of the 1930's (or 1940's), with only sporadic re-classifications, is being used in the 21st century. Prior to the 1987 Constitution, Commonwealth Act 141 or the Publi c Lands Act classifies land into alienable & disposable, timber, and mineral. The present constitution only added another classification, that is the national parks, and that instead of simply classifying land as alienable & disposable, land is classified as agricultural and only these lands can be alienated and disposed. Lands that are alienable and disposable are further classified according to their use and purpose as: Agricultural;] Residential, commercial, industrial or for similar productive purposes; Educational, charitable or other similar purposes; and Reservations for town site and for public or quasi-public purposes. Under Section 9 of CA 141, it is the President, through the recommendation of the DENR Secretary who can make the classifications (according to use or purpose) from time to time, and at anytime can re-classify the land from one use to another. Yet, I have read somewhere about the authority of LGU's through the Local Government Code on

reclassification and zoning ordinances, the responsibility of DENR to delineate forest lands from A&D lands, and the role of DAR in converting agricultural lands to other uses. Confusing.

If you’re planning to purchase or deal with l and located in Boracay, you may want to check on two things: (1) whether the parcel of land belongs to the portion already declared as agricultural, as this is the only portion which may be alienated or disposed of; and (2) if it is classified as agricultural land, whether there is sufficient basis for the owner to claim title to it, as discussed in the case digest below.

The recent case decided by the Supreme Court ( ) is a consolidation of two petitions, both of which center on whether the private claimants have a right to secure titles over their occupied portions in Boracay. The twin petitions pertain to their right, if any, to  judicial confirmation of imperfect title under Commonwealth Act (―CA‖) No. 141, also known as the ―Public Land Act‖. They do not involve their right to secure title under other pertinent laws. Boracay Island in the Municipality of Malay, Aklan, with its powdery white sand beaches and warm crystalline waters, is reputedly a premier Philippine tourist destination. The island is also home to 12,003 inhabitants who live in the bone-shaped island’s three barangays. In 2006, during the pendency of the first petition (for confirmation of imperfect titl e over parcels of land in Boracay), President Gloria Macapagal-Arroyo issued Proclamation No. 1064: classifying Boracay Island into 400 hectares of reserved forest land (protection purposes) and 628.96 hectares of agricultural land (alienable and disposable); and providing for a 15-meter buffer zone on each side of the centerline of roads and trails, reserved for right-of-way and which shall form part of the area reserved for forest land protection purposes. In deciding the matter, the Supreme Court extensively discussed the Regalian Doctrine and traced various laws governing land ownership and registration. The Regalian Doctrine dictates that all lands of the public domain belong to the State, that the State is the source of any asserted right to ownership of land and charged with the conservation of such patrimony. Thus, all lands that have not been acquired from the government, eithe r by purchase or by grant, belong to the State as part of the inalienable public domain. A positive act declaring land as alienable and disposable is required. In keeping with the presumption of State ownership, there must be a positive act of the government, such as an official proclamation, declassifying inalienable public land i nto disposable land for agricultural or other purposes. All lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. The burden of proof in overcoming the presumption of State ownership of the lands of the public domain is on the person applying for registration (or claiming ownership), who must prove that the land subject of the application is alienable or disposable. To overcome this presumption, incontrovertible evidence must be established that the land subject of the application (or claim) is alienable or disposable. There must still be a positive act declaring land of the public domain as alienable and disposable. To prove that the land subject of an application for registration is alienable, the applicant must establish the existence of a positive act of the government such as a presidential proclamation or an executive order; an administrative action; investigation reports of  Bureau of Lands investigators; and a legislative act or a statute. The applicant may also secure a certification from the government that the land claimed to have been possessed for the required number of years is alienable and disposable.

In this case, no such proclamation, executive order, administrative action, report, statute, or certification was presented to the Supreme Court. The records are bereft of evidence showing that, prior to 2006, the portions of Boracay occupied by private claimants were subject of a government proclamation that the land is alienable and disposable. It was Proclamation No. 1064 which positively declared part of Boracay as alienable and opened the same to private ownership. There was nothing invalid or irregular, much les s contrary to the Constitution, about the classification of Boracay Island made by the President through Proclamation No. 1064. It was within her authority to make such classification, subject to existing vested rights. In issuing Proclamation No. 1064, President Gloria Macapagal-Arroyo merely exercised the authority granted to her to classify lands of  the public domain, presumably subject to existing vested rights. Classification of public lands is the exclusive prerogative of the Executive Department, through the Office of the President. Courts have no authority to do so. Absent such classification, the land remains unclassified until released and rendered open to disposition. Private claimants are not entitled to apply for judicial confirmation of imp erfect title under CA No. 141. There are two requisites that must be complied with: open, continuous, exclusive, and notorious possession and occupation of the subject land by himself or through his predecessors-in-interest under a bona fide claim of ownership since time immemorial or from June 12, 1945; and the classification of the land as alienable and disposable land of the public domain. The second requisite (alienable and disposable land) is absent because, as discussed, the island remained an unclassified land of the public domain and, applying the Regalian doctrine, is considered State property. Where the land is not ali enable and disposable, possession of the land, no matter how long, cannot confer ownership or possessory rights. The private claimants may not also apply for judicial confirmation of imperfect title under Proclamation No. 1064, with respect to those lands which were classified as agricultural lands. Private claimants failed to prove the first element of open, continuous, exclusive, and notorious possession of their lands in Boracay since June 12, 1945. The continued possession and considerable investment of private claimants do not automatically give them a vested right in Boracay. Nor do these give them a right to apply for a title to the land they are presently occupying. Nevertheless, the private claimants may resort to the following: those with lawful possession may claim good faith as builders of  improvements. They can take steps to preserve or protect their possession. They may look into other modes of applying for original registration of title, such as by homestead or sales patent, subject to the conditions imposed by law. More realistically, Congress may enact a law to entitle private claimants to acquire title to their occupied lots or to exempt them from certain requirements under the present land laws. There is one such bill now pending in the House of Representatives. Whether that bill or a similar bill will become a law is for Congress to decide.

The Supreme Court En Banc recently promulgated a decision effectively reshaping the process of acquisition and registration of all untitled lands currently in the possession of  persons and entities other than the Philippine Government. In a 39-page decision penned by Justice Dante O. Tinga, the Court held that in connection with Section 14 (1) of the Property Registration Decree, Section 48 (b) of the Public Land Act recognizes that ―those who by themselve s or through their predecessors in interest have been in open, continuous and exclusive possession and occupation of alienable and

disposable lands of the public domain, under a bona fi de claim of ownership, since June 12, 1945‖ have acquired ownership of , and registrable title, to such lands based on the length and quality of their possession. The Court clarified that the Public Land Act merely requires possession since June 12, 1945 and does not require that the lands should have been alienable and disposable during the entire period of possession. The possessor is thus entitled to secure judicial confirmation of title as soon as the land it covers is declared alienable and disposable. This is, however, subject to the December 31, 2020 deadli ne imposed by the Public Land Act, as amended by R.A. 9176. The Court also held that the New Civil Code must be considered in complying with Section 14 (2) of the Property Registration Decree with regard to the acquisition of property of the public domain, specifically those that become patrimonial property. The Court held that under the New Civil Code, prescription is recognized as a mode of acquiring ownership of  patrimonial property. However, public domain lands become patrimonial property or private property of the government only upon a declaration that these are alienable or disposable lands, together with an express government manifestation that the property is already patrimonial or no longer retained for public service or the d evelopment of national wealth. Only when the property has become patrimonial can the prescriptive period for the acquisition of property of the public domain begin to run, said the Court. Patrimonial property may be acquired through ordinary acquisitive prescription (possession for at least 10 years in good faith and with just title) or extraordinary acquisitive prescription (uninterrupted, adverse possession for at least 30 years regardless of good faith or just title). Applying these doctrines, the Court denied an application for confirmation of title in a land registration case filed by the heirs of one Mario Malabanan, herein petitioners, over a parcel of land in Cavite in this case. The Court dismissed the petitioners’ application for registration because there was insufficient evidence to show that the petiti oners or their predecessors have been in possession of the land on or before June 12, 1945. The Court also denied acquisition of ownership by virtue of Section 14 (2) of the Property Registration Decree because the petitioners failed to show competent evidence declaring that the land in question is no longer intended for public use or service, ruling that the classification of the subject property as alienable and disposable land of public domain does not change its status as property of the public dominion. Concurring are Justices Consuelo YnaresSantiago, Antonio T. Carpio, Ma. Alicia Austria- Martinez, Conchita Carpio Morales, Presbitero J. Velasco, Jr., Antonio Eduardo B. Nachura, Diosdado M. Peralta and Lucas P. Bersamin. Justice Minita V. Chico–Nazario, in her Concurring and Dissenting Opinion, agreed with the majority in denying petitioners’ application for registration. However, she asserted that the Property Registration Decree refers only to private lands and not to lands of the public domain. She declared that it is the Public Land Act, and not the Property Registration Decree, which governs the process of acquisition of agricultural public lands. She opined that the Public Land Act gives an exclusive enumeration of the ways by which agricultural land may be acquired, and the list does not include acquisition by prescription. As for the Property Registration Decree, Justice Chico-Nazario said that it cannot confer title to land, but can only confirm title that already exists or has vested. Chief Justice Reynato S. Puno and Justice Teresita J. Leonardo de Castro join her Concurring and Dissenting Opinion. In his Dissenting Opinion, Justice Arturo D. Brion declared as erroneous the ruling that the classification of public lands as alienable and disposable does not need to date back to 12 June 1945. He based his assertion on the Constitution’s Regalian Doctrine; on the interpretation that the Public Land Act applies only from the time a public land is classified as alienable and disposable; and on the law established by the Civil Code that public land may only be appropriated upon its prior classification as alienable and di sposable. He opined that the case must not be viewed as an authority on the rules on effective possession prior to classification, and a more binding set of guidelines must be established once an actual

case regarding this matter has been filed and reaches the Supreme Court. Justice Brion’s dissent is joined by Justice Renato C. Corona. ( )

A principle in law which means that all natural wealth - agricultural, forest or timber, and mineral lands of the public domain and all other natural resources belong to the state. Thus, even if the private person owns the property where minerals are discovered, his ownership for such does not give him the right to extract or utilize said minerals without permission from the state to which such minerals belong.

> Capacity of the state to own or acquire property—foundation for the early Spanish decree embracing the feudal theory of jura regalia > This concept was first introduced through the Laws of the Indies and the Royal Cedulas > The Philippines passed to Spain by virtue of discovery and conquest. Consequently, all lands became the exclusive patrimony and dominion of the Spanish Crown. > The Law of the Indies was followed by the Ley Hipotecaria or the Mortgage Law of 1893. This law provided for the systematic registration of titles and deeds as well as possessory claims > The Maura Law: was partly an amendment and was the last Spanish land law promulgated in the Philippines, which required the adjustment or registration of all agricultural lands, otherwise the lands shall revert to the State

MANILA, Philippines—Eight years ago the Supreme Court was confronted with the issue whether ―ancestral domain‖ should be recognized as a legal category in Philippine  jurisprudence. In the end, ancestral domain as a working legal category was upheld by a vote of 7-7. Notably, however, the seven who voted against it and four who voted for it are no longer in the Supreme Court. Thus debate about it today might be a different ballgame altogether. More than the matter of Court composition, however, is the expansion of the concept itself. Eight years ago the issue was largely about land and proprietary ownership. But, in the GRP-MILF draft MOA, ―Ancestral domain, as a concept in the context of the GRP -MOA became more than just land and its proprietary ownership. The MOA-AD also had items that explicitly defined the Bangsamoro people’s identity and acknowledged their roots from a self-governing society in pre-Colonial Philippines. At the heart of the concept of AD was respect and acknowledgment, not only of the Bangsamoro people’s rights and freedoms, but also vested property rights and religious and cultural liberties of other peoples.‖  Put succinctly, it became about both dominium and imperium. And this is what made the matter complicated enough to make some politicians climb the wall and rush the Court to issue a TRO. The dominium part was difficult enough, as evidenced by the 7-7 vote of eight years ago; and the imperium part was made more difficult by time-tested concepts of both constitutional law and international law now being confronted by embryonic legal concepts

arising out of the proliferation of peace agreements which even now are b eing labeled as lex pacificatoria. But let us begin from where it began. The Novisima Recopilacion de Leyes de las Indias started it all. The Spanish Crown put it thus:  ―We, having acquired full sove reignty over the Indies, and all lands, territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of grant be restored to us as they belong to us, in order that after reserving before all what to us or to our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in those places which are peopled, taking into consideration not only their present condition, but al so their future and their probable increase, and after distributing to the natives what may be necessary for tillage and pasturage, confirming them in what they now have and gi ving them more if  necessary, all the rest of said lands may remain free and unencumbered for us to dispose of  as we may wish.‖ 

Thus was asserted the regalian doctrine. The Spanish king claimed ownership of everything of value in the Indies or colonies thereby stripping natives of their ancestral rights to l and. Philippine courts, all the way to the Supreme Court even after the arrival of the Americans, followed the regalian doctrine. Then came in 1906 Cariño vs. Insular Government, a decision penned by Justice Holmes, reversing a decision that had gone all the way to the Philippine Supreme Court. The case involved the claim by a native Ibaloi to ownership antedating colonial times. Justice Holmes wrote:  ―It is true that Spain, in its earlier decrees, embodied t he universal feudal theory that all lands were held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those in the same zone of civilization with themselves. It is t rue, also, that in legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is a question of strength, and may vary i n degree. How far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past, and how far it sha ll recognize actual facts, are matters for it to decide.‖ 

Whereupon the new sovereign through Justice Holmes ruled in favor of Cariño and ordered the registration of the 148 hectares in Baguio Municipality in his name. Justice Holmes recognized that Cariño had ―native title‖ to the land, saying: ―The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument, characterized as a savage tribe that never was brought under the civil or military government of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly the plaintiff was entitled by the Spanish Laws, and which would have made his title beyond question good. Whatever may have been the technical position of Spain it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present government seized his land. The argument to that effect seems to amount to a denial of native titles through an important part of the Island of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce.‖  The Cariño decision notwithstanding, however, the 1935 Constitution embodied the regalian doctrine. So did the 1973 Constitution and now the 1987. Can ancestral domain and regalian doctrine stand together?