Analysis: Indigenous Peoples' Ancestral Domain Claim Over Coastal Waters in Zambales

Summary

The opinion of the Department of Energy (DOE) official that the Indigenous Peoples' (IP) claim over coastal waters as ancestral domain is "doubtful" is legally untenable, and his proposed negotiation to limit the claim to land areas only is contrary to law. Republic Act No. 8371 (Indigenous Peoples' Rights Act of 1997 or "IPRA") explicitly includes ancestral waters within the concept of ancestral domain. Any agreement that would require the IP group to waive its legally recognized rights to ancestral waters in exchange for the DOE's forbearance is void as against public policy.

Backgrounder

The DOE is exploring potential native hydrogen resources off the coast of Zambales. An indigenous cultural community (ICC) has asserted that the coastal waters form part of their ancestral domain by reason of long-standing traditional fishing activities. Although no formal delineation has yet been issued by the National Commission on Indigenous Peoples (NCIP), the IP group seeks to prevent surveys within those waters. The DOE official proposes a quid pro quo: the IPs waive any claim over water in exchange for the DOE's undertaking not to survey those waters.

Two issues arise: (1) whether coastal waters may be included in ancestral domain; and (2) whether an ICC/IP can be compelled—or induced—to contractually relinquish a statutorily recognized right.

Structured Analysis

I. Statutory Framework: RA 8371 Does Not Limit Ancestral Domain to Land

The official's premise that RA 8371 is "primarily concerned with land areas" reflects an incorrect reading of the statute.

A. Definition of Ancestral Domain

Section 3(a) of RA 8371 defines "Ancestral Domains" as:

"all areas generally belonging to ICCs/IPs... which shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities..." (Emphasis supplied)

B. Ancestral Waters — Explicitly Defined

Section 3(h) separately defines "Ancestral Waters" as:

"all waters found within the ancestral lands, which include seas, rivers, lakes, creeks, and streams flowing through, around, and within the ancestral domains."

C. Coastal Areas

Section 3(i) defines "Coastal Areas" as:

"landward of the limit of eighteen (18) meters from mean low water... and all tidal lands, mangrove swamps, marshes and other wetlands, bays, gulfs, inlets, and peninsulas."

Reading these provisions together, the law expressly envisions ancestral domain as inclusive of inland and coastal waters, not merely dry land. The DOE official's interpretation is therefore directly contradicted by the text of the statute.

II. Jurisprudence Affirms Ancestral Waters as Part of Ancestral Domain

The Supreme Court has consistently upheld the inclusion of ancestral waters within the constitutional and statutory protection of indigenous peoples.

A. Cariño v. Insular Government (212 U.S. 449; 29 Phil. 241, 1909) — Although an early American-era decision, this remains the foundational case recognizing that native title over ancestral lands and waters existed long before Spanish colonization. Justice Holmes, for the U.S. Supreme Court, held that lands "held under native title" were not "public lands" of the Crown, and the same logic extends to waters traditionally used and occupied.

B. The Provincial Government of Palawan v. Executive Secretary Alcantara (G.R. No. 110379, July 12, 2002) — This case involved the Tagbanua people of Coron Island, who claimed ownership and possession of the surrounding waters. The Supreme Court affirmed the IP group's right to the territorial waters surrounding their ancestral land, recognizing ancestral waters as integral to ancestral domain under RA 8371.

C. Hagabing v. Court of Appeals (G.R. No. 109295, 1997) — Recognized the customary rights of indigenous peoples, including rights to fishing grounds and waters.

D. Muncal v. Court of Appeals (G.R. No. 120506, January 25, 2000) — Recognized the property rights of IPs over their ancestral lands.

These rulings collectively establish that traditional fishing waters and coastal seas used by IPs for generations are part of their ancestral domain, regardless of whether a formal Certificate of Ancestral Domain Title (CADT) has been issued.

III. Absence of Formal Delineation Does Not Nullify the Claim

The fact that no formal delineation has been issued does not mean the IP group has no rights. RA 8371 recognizes that ancestral domain rights exist as a matter of fact and customary law. Section 56 of RA 8371 outlines the procedure for delineation, but until such delineation, the IPs' rights are not extinguished—they are merely unregistered.

Furthermore, Section 3(a) explicitly recognizes that ancestral domain may include areas "which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities." Hence, the absence of continuous physical occupation does not defeat the claim.

IV. The Proposed Negotiation Is Contrary to Law and Public Policy

The DOE official's proposed quid pro quo is legally defective for several reasons:

A. Waiver of Statutory Rights Cannot Be the Subject of a Valid Compromise Agreement

Under Article 1346 in relation to Article 1409 of the Civil Code, contracts whose object is contrary to law, public order, or public policy are void and inexistent. An agreement that requires an IP group to surrender a right granted under RA 8371 in exchange for consideration is contrary to:

• Article XIII, Section 6 of the 1987 Constitution;
• Sections 3, 7, and 9 of RA 8371, which recognize the inalienable rights of ICCs/IPs to their ancestral domains;
• Public policy protecting indigenous cultural communities.

B. The Proper Legal Process: Free and Prior Informed Consent (FPIC)

Sections 57–59 of RA 8371 require that any exploration, development, or utilization of natural resources within ancestral domains must comply with the Free and Prior Informed Consent (FPIC) process. The procedure involves:

1. Documentation and Field Investigation by the NCIP;
2. Assembly-based Decision-Making within the IP community;
3. FPIC Compact or Agreement between the parties, reviewed by the NCIP;
4. Issuance of Certification Precondition (CPC) by the NCIP.

The DOE cannot bypass this statutory framework by resorting to a private negotiated compromise that extinguishes statutory rights.

C. Conflict with the Regalian Doctrine and State Authority

While the Regalian Doctrine (Article XII, Section 2, 1987 Constitution) provides that all natural resources belong to the State, this doctrine has been modified by RA 8371 with respect to ancestral domains. The State may exercise its power of exploration only with proper FPIC, not by inducing the IP group to renounce its rights.

V. Existing Petroleum Service Contracts — A Separate Matter

The DOE official's concern about "existing petroleum service contracts" is a red herring. Those contracts, if lawfully entered into prior to or independently of the IP claim, are governed by their own terms and applicable petroleum law (e.g., Presidential Decree No. 87, Oil Exploration and Development Act of 1972). They do not justify the marginalization of the IP group's rights under RA 8371.

Follow-up Questions for Critical Thinking

1. What if the ancestral domain claim overlaps with a Petroleum Service Contract that was issued before RA 8371 took effect in 1997? Does the non-impairment clause (Article III, Section 10 of the Constitution) protect the contractual rights of the contractor, and how is this balanced against the IPs' rights?

2. What if the IP group had never conducted traditional fishing in the specific area where the survey is proposed? Does customary use of waters extend only to areas historically fished, or does ancestral domain over waters follow from ancestral domain over adjacent land?

3. Should the "no formal delineation" defense defeat the IPs' claim even temporarily? Under Section 56 of RA 8371, can the DOE or NCIP issue a temporary restraining order or provisional protection pending delineation?

4. If FPIC is obtained but the IPs later withdraw consent due to environmental or cultural harm, what is the legal remedy available to the State and the contractor?

5. How does the Supreme Court's ruling in Concerned Official of the Provincial Government of Palawan v. Hon. Alcantara treat prior grants by the State to non-IPs that intrude into ancestral waters? Is the State estopped from asserting the Regalian Doctrine against its own prior intrusion?

Conclusion and Actionable Takeaways

Conclusion

The DOE official's opinion is not tenable, both on its reading of RA 8371 and on the proposed negotiation:

• RA 8371 unambiguously includes ancestral waters within ancestral domain (Sections 3(a), 3(h), 3(i)).
• The Supreme Court has upheld this expansive interpretation in cases like Alcantara and Hagabing.
• The IPs' rights exist regardless of formal delineation; absence of CADT does not defeat ancestral domain rights.
• A negotiated agreement requiring the IP group to relinquish these rights is void as against law and public policy.
• The proper course is FPIC under Sections 57–59 of RA 8371, with NCIP facilitation, not a backroom compromise that extinguishes statutory rights.

Recommendations

1. Suspend the survey until the NCIP formally delineates the ancestral domain and the FPIC process is complied with.
2. Initiate FPIC proceedings with the IP group in accordance with Sections 57–59 of RA 8371 and the NCIP's Revised Rules of Procedure (NCIP Administrative Order No. 3, series of 2012).
3. Document traditional use of coastal waters through ethnographic and historical evidence to support the ancestral waters claim.
4. Explore co-management or co-exploration agreements that respect the IP group's rights rather than seeking their waiver.
5. Seek legislative clarification if needed, particularly on the interaction between petroleum service contracts and ancestral domain claims predating the exploration.
6. Coordinate with NCIP to avoid jurisdictional overlap with the DENR (which may have claims over municipal waters under the Local Government Code and the Philippine Fisheries Code).

Suggested Further Reading

• Republic Act No. 8371 (Indigenous Peoples' Rights Act of 1997), full text and implementing rules.
• The Provincial Government of Palawan v. Executive Secretary Alcantara, G.R. No. 110379 (July 12, 2002).
• Hagabing v. Court of Appeals, G.R. No. 109295 (1997).
• NCIP Administrative Order No. 3, Series of 2012 (Omnibus Rules on Delineation and Recognition of Ancestral Domains and Lands).
• Jose M. Roy III et al., Indigenous Peoples and the Law (2023 ed.) for doctrinal commentary.

Note: This analysis is intended for training purposes. For actual legal proceedings, consultation with the NCIP, the Office of the Solicitor General, or specialized counsel in indigenous peoples' rights is advised.