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The Department of Energy (DOE) is conducting surveys for possible native hydrogen exploration in, among others, the province of Zambales. An…

2026 Bar Exam · Political & Public International Law · Question 10 · Essay

The question

The Department of Energy (DOE) is conducting surveys for possible native hydrogen exploration in, among others, the province of Zambales. An Indigenous Peoples (IP) group in the area has voiced concerns and asked that no such surveys be conducted in the coastal waters of Zambales. They claim that it is part of their ancestral domain for having been their traditional fishing waters, although no formal delineation has yet to be done. A DOE official is concerned that the water claim may jeopardize the hydrogen exploration project and the existing petroleum service contracts off the coast of Zambales. He opines that the claim over the coastal waters as ancestral domain is doubtful as Republic Act No. 8371 is primarily concerned with land areas. To address this, he proposes that the DOE negotiate with the IP group for the latter to limit their ancestral domain claim to land areas only and DOE, in turn, will not conduct the surveys in the coastal waters. Is the opinion of the DOE official on the water claim and negotiation tenable? Explain.

Held

No, the opinion of the DOE official is not tenable because Republic Act No. 8371 (Indigenous Peoples' Rights Act of 1997) explicitly recognizes ancestral domains to include coastal areas and bodies of water traditionally occupied or used by Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs), and any government project affecting such areas requires prior certification from the National Commission on Indigenous Peoples (NCIP) with free and prior informed consent, under Section 3(a), Section 7, and Section 59 of RA 8371.

Explanation

The Indigenous Peoples' Rights Act of 1997 (RA 8371) defines ancestral domains broadly to include not only lands but also inland waters, coastal areas, and natural resources therein that have been traditionally occupied or used by ICCs/IPs since time immemorial. This means that ancestral domain claims can extend to coastal waters traditionally used for fishing or other subsistence activities. The law recognizes the rights of ICCs/IPs to ownership and possession of these areas, including the right to develop, control, and use the lands and resources, and to negotiate terms for exploration or development projects affecting their domains.

The law requires that no government agency may issue concessions, licenses, or enter into agreements affecting ancestral domains without prior certification from the NCIP, which must be based on a field investigation and obtained with the free and prior informed consent of the ICCs/IPs concerned. This certification process ensures that the rights of ICCs/IPs are respected and protected before any project proceeds.

The fact that the ancestral domain claim over the coastal waters has not yet been formally delineated or that no Certificate of Ancestral Domain Title (CADT) has been issued does not negate the claim or the rights of the ICCs/IPs. The law explicitly states that the issuance of a CADT is a formal recognition of rights already existing by virtue of traditional occupation and possession. Therefore, the DOE's view that RA 8371 primarily concerns land areas and that the water claim is doubtful is incorrect.

Furthermore, the proposal to negotiate with the IP group to limit their claim to land areas only is problematic because it disregards the legal recognition of ancestral domains as including coastal waters and bodies of water traditionally used by the IPs. Such a negotiation could undermine the IPs' rights protected by law and the constitutional mandate to protect indigenous peoples' ancestral domains.

Application to the facts

In this case, the Indigenous Peoples group in Zambales claims that the coastal waters are part of their ancestral domain due to traditional fishing activities. Under RA 8371, this claim is valid because ancestral domains include coastal areas and bodies of water traditionally occupied or used by ICCs/IPs. The DOE's opinion that the claim is doubtful because the law primarily concerns land is incorrect, as the law explicitly includes coastal waters within ancestral domains.

Since the ancestral domain claim overlaps with the area where the DOE intends to conduct hydrogen exploration surveys, the DOE must secure prior certification from the NCIP that the area does not overlap with any ancestral domain or obtain the free and prior informed consent of the IPs before proceeding. The absence of formal delineation or a CADT does not invalidate the claim or the need for consultation and certification.

The DOE official's proposal to negotiate with the IP group to limit their claim to land areas only and refrain from conducting surveys in the coastal waters is not legally sound. Such a negotiation would effectively ask the IPs to waive their rights recognized by law over coastal waters, which is not permissible without following the proper legal processes, including free and prior informed consent and NCIP certification. The DOE must respect the IPs' rights and comply with the legal requirements before undertaking any exploration activities in the area.

  • a constitutional provision is among the sources and controls over any conflicting statute
This is general legal information, not legal advice.