BORACAY LANDS – PARAMETERS OF USE

BORACAY LANDS – PARAMETERS OF USE
Dean Emeritus Cesar T. Tirol
University of San Agustin College of Law

    Many legal-sounding words are being tossed about, which could also affect other paradise islands in the Philippines. It is said that February of last year the NAMRIA (National Mapping and Resource Authority) counted 7,507 and only 2000 are inhabited while the rest are not and have no names. Enough for carpetbaggers, hackneyed politicians and rent-seeking bureaucrats to play in.

      June 1582 – Loarca, Account of the Philippine Islands.

Island of Buracay. About two arquebus-shots from the north point of the island of Panay, lies the island of Buracay. It is about three leagues in circumference, and one-half league wide. It is inhabited by about one hundred Indians, who cultivate rice there, and in addition derive profit from some goats.”

“All these islands – Buracay, Anbil, Simara, Sivaay, Similara, and Batbatan – are under the encomenderos of Panay”

     Anbil is Hambil or Carabao Island, Similara is Semirara, the coal-producing island. The Spanish encomenderos collected tributos from these and other islands.

     1523-1646 and later – The Spanish kings over the years modified Magellan’s claim on behalf of the Crown to all lands in the Philippines. The Laws of the Indies recognized the native concept of ownership by occupation and cultivation. At least 21 laws were enacted which emphasized that the distribution of land rights to Spanish subjects was not to impair the rights of the natives (Petitioners’ brief in Cariño v. Insular Government, 41 Phil. 935, 212 U.S. 449).

     April 7, 1900 – President McKinley’s Instructions to the Philippine Commission ordered it to impose on every branch of the colonial government the constitutional mandate that no person shall be deprived of property without due process of law.

      On July 1, 1902 the Organic Act (Philippine Bill) of the U.S. Congress reiterated the principle of respect for property.

    On November 6, 1902 the Land Registration Act was passed by the Philippine Commission and on February 11, 1913 the Cadastral Act was passed. On July 14, 1932 some of the lands of the Heirs of Lamberto Tirol were originally titled. In 1933 some of the lands of the Heirs of Ciriaco H. Tirol were titled (Secretary of DENR v. Yap, 568 SCRA 164, 197 – 2008). Many owners of private lands were similarly situated. Landowners were slow to take advantage of the registration laws due to lack of publicity, defective surveys, and administrative and legal expenses and deficiencies. Many private lands in the country are still untitled.

     February 23, 1909 – Cariño v. Insular Government. The U.S. Supreme Court through Justice Oliver Wendell Holmes, Jr. held that the first object in the internal administration of the islands is to do justice to the natives, and not to exploit their country for private gain; that justice was to be meted according to the Organic Act of 1902 (due process of law); that lands held under a claim of private ownership will be presumed to have been held that way before the Spanish conquest, and never to have been public land.

     November 7, 1936 – Public Land Act (Com. Act No. 141).

    Sec. 6 says that the President shall from time to time classify lands of the public domain into alienable and disposable, timber, and mineral. For the purposes of their administration and disposition. Sec. 11 says that lands suitable for agricultural purposes can be disposed of in four ways, the last being by confirmation of imperfect or incomplete titles. Sec. 48 allows under the latter the issuance of a certificate of title to –

“(b) Those who by themselves or through their predecessors-in-interest have been, in continuous, exclusive, and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition or ownership, for at least thirty years immediately preceding the filing of the application for confirmation of title, except when prevented by war or force majeure. Those shall be conclusively presumed to have performed all the conditions essential to a government grant and shall be entitled to a certificate of title under the provisions of this chapter. (See Sec. 3-4, PD No. 1073).”

The period has been extended from time to time.

“Lands that fall under Section 48 of CA 141 are effectively segregated from the public domain by virtue of acquisitive prescription. We have held that open, exclusive and undisputed possession of alienable public land for the period prescribed by CA 141 ipso jure converts such land into private land. Judicial confirmation in such cases is only a formality that merely confirms the earlier conversion of the land into private land, the conversion having occurred in law from the moment the required period of possession became complete. (Republic v. Manna Properties, Inc., 450 SCRA 247, 259 – 2005)

“It is not disputed that the aforesaid Land Classification Project No. 3, classifying the 22-hectare area as timberland, was certified by the Director of Lands only on December 22, 1924, whereas the possession thereof by private respondents and their predecessor-in-interest commenced as early as 1909. While the Government has the right to classify portions of public land, the primary right of a private individual who possessed and cultivated the land in good faith much prior to such classification must be recognized and should not be prejudiced by after-events which could not have been anticipated. Thus, We have held that the Government, in the first instance may, by reservation, decide for itself what portions of public land shall be considered forestry land, unless private interests have intervened before such reservation is made.” (Republic v. Court of Appeals, 168 SCRA 77, 83-84 – 1988)

May 19, 1975 – Revised Forestry Code (P.D. No. 705).

Sec. 3. Definitions provides:

“c) Alienable and disposable lands refer to those lands of the public domain which have been the subject of the present system of classification and declared as not needed for forest purposes. x-x-x

mm) Private right means or refers to titled rights of ownership under existing laws, and in the case of national minority to rights or possession existing at the time a license is granted under this Code, which possession may include places of abode and worship, burial grounds, and old clearings, but exclude production forest inclusive of logged-over areas, commercial forests and established plantations of forest trees and trees of economic values.”

     Under Sec. 13 lands not needed for forest purposes shall be classified as alienable and disposable.

     Sec. 85 provides:

Tax declaration on real property.— Imprisonment for a period of not less than two (2) no more than four (4) years and perpetual disqualification from holding an elective or appointive office, shall be imposed upon any public officer or employee who shall issue a tax declaration on real property without a certification from the Director of Forest Development and the Director of Lands or their duly designated representatives that the area declared for taxation is alienable and disposable lands, unless the property is titled or has been occupied and possessed by members of the national cultural minorities prior to July 4, 1955.”

     This means that those who have been issued tax declarations are owners of private property.

     PTA Circular No. 3-82 recognized private ownership of forested lands (Secretary of DENR, Ibid., page 179).

     December 19, 1975 – Timber and Forest Lands for Real Property Taxation (P.D. No. 853).

     Sec. 2 provides that “All timber and forest lands that are privately owned shall be declared and listed in the name of the private owner.”

     August 14, 1976 – The National Reservation Survey of Boracay Island identified several lots as being occupied or claimed by named persons (Secretary of DENR, Ibid., page 176).

     November 10, 1978 – Proclamation No. 1801.

     It declared tourist zones and marine preserves under the control of the Philippine Tourism Authority. It recognizes “potentials for aquatic sports, tourism and marine life conservation.” Among the islands listed are Puerto Galera, Boracay Island, Panglao Island, and Coron Island.

     The spelling of the name of the island reveals that by this time it had already gained fame and the government was awakening to tourism potentials. For it had always been spelled with “Bu…” as in Buruanga, the municipality across the strait. The Spaniards were comfortable with the pronunciation and the spelling is still found in the present land records. But from the 1970’s handfuls of Swiss and German backpackers filtered in, and found their Bali Hai or private island. The book of Jens Peters was their bible, it circulated among the Western Europeans. And they were not comfortable with the pronunciation, so now it is spelled with a “Bo …” Those early explorers must be in their 60’s or 70’s now. Some stayed as “expats.”

     December 31, 1976 – The Water Code (Pres. Decree No. 1067).

Sec. 51 provides:

The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40) meters in forest areas, along their margins are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and salvage.  No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind.

This appears to be the easement in Puerto Galera, Panglao, and Coron.

     1987 – Philippine Constitution

     In Art. XII, National Economy and Patrimony, Sec. 2 provides that “With the exception of agricultural lands, all other natural resources shall not be alienated.” Sec. 3 provides that “Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks … Alienable lands of the public domain shall be limited to agricultural lands.”

     June 1, 1992 – National Integrated Protected Area System (Rep. Act No. 7586).

     Sec. 4. Definitions provides:

“(b) “Protected area” refers to identified portions of land and water set aside by reason of their unique physical and biological significance, managed to enhance biological diversity and protected against destructive human exploitation;

(c) “Buffer zones” are identified areas outside the boundaries of and immediately adjacent to designated protected areas pursuant to Section 8 that need special development control in order to avoid or minimize harm to the protected area;”

     May 22, 2006 – Proclamation No. 1064 (Classifying Boracay Island into Forestland (Protection Purposes) and Agricultural Land (Alienable and Disposable).

     Gloria Macapagal Arroyo made the classification.

“x-x-x in accordance with the provisions of Commonwealth Act 141, otherwise known as the Public Land Act and Section 13 of Presidential Decree No. 705 otherwise known as Forestry Reform Code of the Philippines, subject to actual ground survey and delineation, which is more particularly described as follows: x-x-x.”

The Supreme Court said:

It was Proclamation No. 1064 of 2006 which positively declared part of Boracay as alienable and opened the same to private ownership. Sections 6 and 7 of CA No. 141 provide that it is only the President, upon the recommendation of the proper department head, who has the authority to classify the lands of the public domain into alienable or disposable, timber and mineral lands.

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.” (Secretary of DENR v. Yap, 568 SCRA 164, 204-205 – 2008).

“Therefore, what is important in computing the period of possession is that the land has already been declared alienable and disposable at the time of the application for registration. Upon satisfaction of this requirement, the computation of the period may include the period of adverse possession prior to the declaration that land is alienable and disposable. (Emphasis supplied)” (Republic v. Roasa, February 2, 2015, citing AFP-RSBS v. Republic, July 2, 2014).

     In the proclamation Project No. 13-A, Block & Forestland (Protection) appears to refer to the western white beach. It does not include the eastern beach.

     Forest land has been defined:

“FOREST LAND  Swampland along the sea, mangrove land, nipa land, etc. are forest land, a part of the public domain which cannot be appropriated by private persons. — Capalla v. Ebarle, SP-09246-R, October 25, 1979.

A forested area classified as forest land of the public domain does not lose such classification simply because loggers or settlers may have stripped it of its forest cover. Parcels of land classified as forest land may actually be covered with grass or planted to crops by kaingin cultivators or other farmers. Forest lands do not have to be on mountains or in out of the way places. Swampy areas covered by mangrove trees, nipa palms, and other trees growing in brackish or sea water may also be classified as forest land. The classification is descriptive of its legal nature or status and does not have to be descriptive of what the land actually looks like. —Heirs of Amunategui v. Director of Forestry, L-27873, November 29, 1983; 126 SCRA 75.” (Moreno, Philippine Legal Dictionary, pages 386-387).

It seems clear that the sandy seashore is not a part of the above.

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