Monday, March 23, 2015

My state owns my land

I read an essay about solitude and leadership. It says that we can build our creativity and courage by thinking things deeply, working alone, and talking intimately with friends.

This blog is a space for me to think deeply and write briefly. These articles about the law cannot be published in any legal journal because there are no citations. But these posts help me think about the law and imagine how things could be better.

One legal idea that bothers me is the Regalian doctrine. This doctrine is in our Constitution and means that all lands of the public domain belongs to the state. This idea came from the time of kings where all lands belonged to the king.

The law presumes that all lands belong to the state if there is no strong evidence to prove private ownership. If you have a Torrens title, that is strong evidence of land ownership. A land title is only evidence of ownership.

If you do not have a land title, you must prove two things. First, you or the people who owned the land before you must have occupied and possessed the land as an owner in open, continuous, exclusive, adverse, and notorious (OCEAN) possession since 1945 or at least 30 years.

Second, the land must have been classified by the government as alienable or can be held by private individuals. The classification of the land as alienable must precede the application for registration.

The problem with the Regalian doctrine is that it violates the experience of many people who do not know the law. Do we teach land use to subsistence farmers and indigenous (native) peoples? We should but often we don't.

Indigenous peoples have stayed in their lands for thousands of years before the Regalian doctrine was made. Why should their land be taken away from them? No, it shouldn't be taken away because now we have the Indigenous Peoples Rights Act (IPRA) authored by the late Senator Juan Flavier. 

Now, indigenous peoples can apply for a certificate of ancestral domain title (CADT) for a big parcel of land which their whole group can call home. Individual indigenous persons can apply for a certificate of ancestral land title (CALT) for a smaller parcel of land for their family.

That's all I can write for now, but I'll write more about land next time.

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