TO: Corporation A

FROM: Markrod L. Abrazaldo

DATE: Febuary 18, 2017

RE: Indigenous peoples' right to free, prior, informed consent.

FACTS

Section 59 of Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights
Act provides, that no certification shall be issued by the NCIP without the free and prior
informed and written consent of ICCs/IPs concerned

Corporation A wants to secure a license for it to conduct its mining activities in a certain
area affecting barangays occupied by Indigenous Cultural Communities/Indigenous Peoples
(ICCs/IPs). To secure free and prior informed consent (FPIC) and consequently, a certification
precondition under Section 59, Corporation A wants to know what consent means

ISSUE

To secure free and prior informed consent (FPIC) and consequently, a certification
precondition under Section 59, Corporation A wants to know what consent means, i.e., consent
of all members of the affected ICCs/IPs, favorable vote of majority of all the representatives of
the households in the affected ICCs/IPs, or favorable vote of majority of the representatives of
the households attending the meeting to grant the FPIC.

SHORT CONCLUSION

Free and Prior Informed Consent. As used in the Act, shall mean the consensus of all
members of the ICCs/IPs to be determined in accordance with their respective customary laws
and practices, free from any external manipulation, interference and coercion, and obtained after
fully disclosing the intent and scope of an activity, in a language and process understandable to
the community.

ICCs/IPs consent shall be guided by Section 14 in relation to Sec 29.

Section 14, which specifies: (1) who shall be present, what shall be presented, and the
order in which presentations shall be made in the preliminary consultative meeting; (2) the
period within which the elders/leaders should hold consultative meetings with their members
(fifteen days); (3) who shall be allowed to stay in the community within the fifteen day period,
i.e. only the NCIP and only for the purposes of the documentation; and (4) how the decision will
be arrived at, i.e., by vote or by raising of hands of community representatives.

Section 29 requires the community to: (1) write down the customary practice of
consensus-building to be followed; (2) identify in writing and register with the NCIP their
Council of Elders; (3) explain the vote taken; and (4) in case of non-consent, explain in writing
the specific reasons for the decision. This Section 29, prescribes in detail what should be stated
in the Memorandum of Agreement (MOA) in cases where the community chooses to give
consent.

DISCUSSION

General principles concerning Section 59 of Republic Act No. 8371

The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the
"National Economy and the Patrimony of the Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, wildlife, and other natural
resources of the Philippines belong to the State. With the exception of agricultural,
industrial or commercial, residential, and resettlement lands of the public domain,
natural resources shall not be alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, renewable for not more
than twenty-five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in which
cases beneficial use may be the measure and the limit of the grant."

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife,
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 twenty-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, 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 IPRA recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership
and possession of their ancestral domains and ancestral lands, and defines the extent of these
lands and domains. The ownership given is the indigenous concept of ownership under
customary law which traces its origin to native title.

The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains
and ancestral lands. Ancestral lands are not the same as ancestral domains. These are
defined in Section 3 [a] and [b] of the Indigenous Peoples Right Act.

"Sec. 3 a) Ancestral Domains. -- Subject to Section 56 hereof, refer to all areas

generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and
natural resources therein, held under a claim of ownership, occupied or possessed by
ICCs/IPs by themselves or through their ancestors, communally or individually since
time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and
cultural welfare. It 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, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting
cultivators;

Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral
domains except that these are limited to lands and that these lands are not merely
occupied and possessed but are also utilized by the ICCs/IPs under claims of individual
or traditional group ownership. These lands include but are not limited to residential lots,
rice terraces or paddies, private forests, swidden farms and tree lots.

Section 59 of Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act
provides, That no certification shall be issued by the NCIP without the free and prior informed
and written consent of ICCs/IPs

Free, prior and informed consent as a policy instrument signals to all interested and affected
parties (e.g., developers, investors, all government units, and impacted communities) that
indigenous peoples have rights and interests that will be protected in the development process.

The National Commission on Indigenous Peoples (NCIP), the government agency

charged with the implementation of the IPRA, issued its Implementing Rules and Regulations
(IRR) in 1998. In 2002, the Commission came out with revised guidelines on the coverage of the
FPIC, which states: The ICCs/IPs shall, within their communities, determine for themselves
policies, development programs, projects and plans to meet their identified priority needs and
concerns. The

ICCs/IPs shall have the right to accept or reject a certain development, activity or
undertaking in their particular communities. The acceptance or rejection of proposed policy,
program, project or plan shall be assessed in accordance with the following IPs’ development
framework and value systems for the conservation and protection of: Ancestral domains/lands as
the ICCs/IPs fundamental source of life: Traditional support system of kinship, friendship,
neighborhood clusters, tribal and inter-tribal relations rooted in cooperation, sharing and caring;
Sustainable and traditional agricultural cycles, community life, village economy and livelihood
activities such as swidden farming, communal forests, hunting grounds, watersheds, irrigation
systems and other indigenous management systems and practices; and Houses, properties, sacred
and burial grounds.

Section 14, specifies: (1) who shall be present, what shall be presented, and the order in
which presentations shall be made in the preliminary consultative meeting; (2) the period within
which the elders/leaders should hold consultative meetings with their members (fifteen days); (3)
who shall be allowed to stay in the community within the fifteen day period, i.e. only the NCIP
and only for the purposes of the documentation; and (4) how the decision will be arrived at, i.e.,
by vote or by raising of hands of community representatives.

Section 29 requires the community to: (1) write down the customary practice of
consensus-building to be followed; (2) identify in writing and register with the NCIP their
Council of Elders; (3) explain the vote taken; and (4) in case of non-consent, explain in writing
the specific reasons for the decision. Lastly, it prescribes in detail what should be stated in the
Memorandum of Agreement (MOA) in cases where the community chooses to give consent.
These bureaucratic requirements highlight the importance and need for practical guidelines to
facilitate the implementation of FPIC. Such guidelines must be based on a review of the actual
experiences in its implementation.

Case Studies

An examination of the exercise of FPIC in a number of development projects since the

passage of the IPRA reveals some of the problems in the implementation of the law. The
problems arise in a context of competing policies and conflicting laws prioritized by the
Philippine Government in its national economic development strategy.

The Mining Code contains a clear requirement that, where mining development is
proposed on ancestral lands, the free, prior, informed consent of the affected indigenous peoples
must be secured before the project can proceed. In a concerted campaign to overcome its
notorious reputation for abuse of local peoples’ rights and failure to maintain decent social or
environmental standards, the mining industry has often claimed in recent years to be seeking a
new approach that contributes to sustainable development. The combination with the Philippine
Mining Code offers every opportunity for a manifestation of best practice.

It is revealing and disturbing, therefore, to examine the experience of mining company

practice in pursuing access to mineral wealth in different parts of the Philippines. There emerges
a pattern of abuse and misrepresentation that covers virtually all projects and involves both small
and large firms.

1.) The Subanen peoples in the Zamboanga peninsula who have come into
conflict with, among others, Rio Tinto, the world’s largest mining company,
and TVI Pacific of Canada – a company with no existing mines. Both Rio
Tinto and TVI were focused primarily on potential gold and copper extraction.
Rio Tinto has now withdrawn in the face of determined opposition but,
despite the clear opposition of the local communities, TVI is pressing ahead
with its mining development.

The experience of indigenous communities in the Philippines stands as a vehement

reminder that surface level change is not sufficient.Despite progressive law that promises to
involve indigenous communities in the future of their ancestral lands, the indigenous voice
continues to be manipulated and ignored in the face of foreign owned mining firms. When
industry interests clash with local interests, the former continues to prevail.