REVISED GUIDELINES FOR THE ISSUANCE OF CERTIFICATION PRECONDITION AND THE FREE AND PRIOR INFORMED CONSENT IN THE CONNECTION WITH APPLICATIONS FOR LICENSE PERMIT, AGREEMENT OR CO…
NCIP ADMINISTRATIVE ORDER NO. 3, S. OF 2002[1]
Pursuant to
Sections 44 (m), 46(a), 57, 58, 59, and 7 (b) and (c) of R.A. 8371,
otherwise known as the Indigenous Peoples Rights Act of 1997, and other
related provisions, the following guidelines are hereby promulgated
revising NCIP Administrative Order No. 03 Series of 1998, as follows:
I. PRELIMINARY PROVISIONS
SECTION 1. Title. — These rules shall be known as the Revised Guidelines for FPIC and issuance of Certificate Precondition.
SECTION 2. Objective. — These guidelines aim to:
a) Ensure
community participation in the decision making process in obtaining the
Free and Prior Informed Consent of concerned ICCs/IPs;
b) Protect
the primary rights of ICCs/IPs in the implementation of development
projects, programs activities and other business or profit oriented
investments within their ancestral domains to ensure their economic,
social and cultural well-being;
c) Provide
the procedure and the standards in the product of field-based
investigation charges of fees, compensation for damages and imposition
of administrative sanctions for intentional commission of prohibited
acts as hereinafter provided; and
d) When
FPIC is given, ensure just partnership and equity in the environmental
management, land use, development, utilization, and exploitation of
resources within ancestral domains, between and among the concerned
ICC/IP community and prospective investor, government agency, LGUs, NGOs
and other entities desiring to collaborate in such undertaking.
SECTION 3. Declaration
of Policy. — Inroads into the ancestral domains of ICCs/IPs resulted
more often to their disenfranchisement and marginalization. Policies,
plans, development programs and projects which may have been prejudicial
to the rights and interests of ICCs/IPs, and certain harmful or
detrimental undertakings or activities have been adopted and implemented
within ancestral domains without consent of concerned ICC/IP
communities. Free and prior informed consent as an instrument of empowerment, enables ICCs/IPs to exercise their right to self-determination. In
order to uphold the clear intent and purpose of the law in requiring
the preoccupation of free and prior informed consent of the ICCs/IPs in
connection with applications for lease, license, permit, agreement
and/or concession to implement and/or operate
programs/projects/activities in ancestral domains, it is the policy of
the NCIP that the process of securing the FPIC of ICCs/IPs and the
corresponding issuance of Certificate Precondition shall be had with
utmost regard to the overriding right of the ICC/IP to the management,
development, use and utilization of their own land and resources within
their ancestral domains and lands as recognized by the State. It
shall Institute and establish protective mechanisms to enforce and
guarantee the realization of that bundle of rights, within the framework
of national unity and development. Corollary to
this, the NCIP shall exercise its visitorial powers and may take
appropriate action to safeguard the rights of the ICCs/IPs under
resource utilization contracts. All concerned
departments and other government agencies are, therefore, strictly
enjoined not to issue, renew, or grant any concession, license or lease,
or enter into any production-sharing agreement, without the
certification precondition issued by the NCIP or the concomitant
compliance with the requirements of free, prior and informed consent
obtained from the ICC/IP community.
SECTION 4. Operating Principles. — In the implementation of these guidelines, the following principles shall be observed:
a) Consensus and Decision-Making Process. The
ICCs/IPs shall participate in the decision-making processes primarily
through their indigenous socio-political structures and they shall
likewise affirm the decisions of their representations.
b) Peace-Building.
In resolving conflicts or disputes affecting or pertaining to
indigenous peoples, any determination or decision thereon shall be
reached through dialogue and consensus.
c) Primacy
of Cultural Integrity. Within ancestral domain/lands, the holistic and
integrated adherence of indigenous peoples to their respective customs
beliefs, traditions, indigenous knowledge systems and practices, and the
assertion of their character and identity as peoples shall assume an
important consideration in the decision-making processes required for
the issuance of the certification as a pre-condition to applications for
lease, license, permit, agreement and/or concession to implement or
operate programs/projects/activities in ancestral domains to ensure that
the culture and traditions of the concerned ICCs/IPs are applied or
utilized in the process.
d) Right to Manage Own Land and Resources as Basis. The
right of the ICCs/IPs to manage their own land and resources within
their ancestral domains and lands as embodied in their respective plans
for the sustainable development and protection and ancestral domains
shall be the basis for their decisions to give or not give consent to
proposed programs/projects/activities in ancestral domains and/or
affecting their rights as a community and as people.
e) Primacy
of Customary Law. The conduct of field-based investigation and the
process of securing the free and prior informed consent shall take into
consideration the primacy of customary processes of consensus building.
f) Priority in the Development of the Ancestral Domain. The
ICCs/IPs are given utmost priority in the management and pursuit of
development programs/projects/activities in ancestral domains. In
all instances, the ICCs/IPs shall have priority in the development,
extraction, utilization and exploitation of natural resources within
ancestral domains.
g) Sustainable
Development and Protection. The FPIC, whenever given, shall not have
the effect of undermining the requisite of sustainable development and
protection of ancestral domains, to ensure the welfare of not only the
present but as well as that of the future generations.
h) Transparency and Clarity. The
process of conducting the field-based investigation, consensus-building
and the issuance of the certification precondition (CP) and the free
and prior informed consent (FPIC) shall be characterized by transparency
not only on the part of the Commission but also on the part of the
ICC/IP concerned. It is required, therefore, that
all issuances, orders, decisions of the Commission relative thereto
must be made known to all parties concerned.
i) Inter-agency/LGUs and NGO Collaboration and Community Support. The
collaboration of other government agencies, local government units,
local government agencies, local government units and the involvement
and participation of the ICCs/IPs in the process shall be greatly
encouraged and vigorously pursued. NGOs who have
actively assisted a particular ICC/IP in the processing of their claim
is given preference over any other NGOs desiring to collaborate, subject
to the written consent of the ICC/IP through their recognized
elders/leaders for this particular undertaking.
SECTION 5. Definition
of Terms. The terms defined in the Indigenous Rights Act and its
implementing Rules and Regulations are hereby adopted, including the
terms defined herein below:
a. ADSDPP
— refers to the Ancestral Domain Sustainable Development Protection
Plan drawn and adopted by the ICC/IP community to govern the exercise of
their sustainable traditional resource use rights within their
ancestral domain areas, their framework of development and value
systems.
b. Customary
Laws — refers to a body of written and/or unwritten rules, usage,
customs and practices traditionally and continually recognized, accepted
and observed by the ICCs/IPs. Customs and
practices refer to norms of conduct and patterns of relationship or
usage of community over time that is accepted and binding on all
members.
c. Certification
Precondition — refers to the certification issued by the NCIP that the
site covered and affected by any application for concession, license or
lease or production-sharing agreement does not overlap with any
ancestral domain area of any indigenous cultural community or indigenous
peoples, or if the site is found to be within an ancestral domain area,
that the required FPIC was properly obtained from the ICC/IP community
concerned in accordance with the provisions of these guidelines.
d. Free
and Prior Informed Consent — this is the consensus of all members of
the ICCs/IPs which is determined in accordance with their respective
customary laws and practices that is free from any external
manipulation, interference and coercion and obtained after fully
disclosing the intent and scope of the program/project/activity, in a
language and process understandable to the community. The
Free and Prior Informed Consent is given by the concerned ICCs/IPs upon
the signing of the Memorandum of Agreement containing the
conditions/requirements, benefits as well as penalties of agreeing
parties as basis for the consent.
e. Field-based
Investigation — refers to the on-site inspection and investigation to
ascertain the presence or absence of ICCs/IPs and/or ancestral domains
in the areas covered by application for certification precondition to
any concession, license or lease, or enter into any production-sharing
agreement.
f. Indigenous
Cultural Communities/Indigenous Peoples (ICCs/IPs) — refer to a group
of people or homogenous societies identified by self ascription and
ascription by others, who have continuously lived as organized community
on communally bounded and defined territory, and who have, under claims
of ownership since time immemorial, occupied possessed, and utilized
such territories, sharing common bonds of language, customs, traditions
and other distinctive cultural traits or who have, through resistance to
political, social, and cultural inroads of colonization, non indigenous
religions and cultures or the establishment of present state
boundaries, who retain some or all of their own social, economic,
cultural and political institutions, but who may have been displaced
from their traditional domains or who may have resettled outside their
ancestral domains.
g. Indigenous
Knowledge Systems and Practices — refers to the systems, institutions,
mechanisms, technologies comprising a unique body of knowledge evolved
through time that embody patterns of relationships between and among
peoples, their lands and their environment, including such spheres of
relationships which may include social, political, cultural, economic,
and religious that are direct outcomes of the indigenous peoples’
response to certain needs consisting of adaptive mechanisms which have
allowed indigenous peoples to survive and thrive within their given
socio-cultural and biophysical conditions.
h. Elders
— are individual IPs or members of ICCs with a certain degree of
esteem, dignity, respect, and integrity who could be relied upon as
sources of information, act as counsels of community concerns, and
knowledgeable and practicing customs and traditions.
i. Self-Determination/Governance
— the exercise of the right of ICCs/IPs to pursue their economic,
social, and cultural development; promote and protect the integrity of
their values, practices, indigenous knowledge and institutions;
determine, use and control their own organizational and community
leadership systems, institutions, relationships, patterns, and processes
for decision making and participation.
j. Sustainable
Traditional Resource Use Rights — means the right of ICCs/IPs to use,
manage, protect and conserve: a) land, air, water, and mineral, b)
plants, animals and other organisms, c) collecting, fishing and hunting
grounds, d) sacred sites, and e) all areas of economic, ceremonial and
aesthetic value in accordance with their indigenous knowledge, beliefs,
systems and practices.
SECTION 6. Coverage.
— 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 ICC/IP development
framework and value systems for the conservation and protection of:
a) Ancestral domains/lands as the ICCs/IPs fundamental source of life;
b) Traditional
support system of kinship, friendship, neighborhood clusters, tribal
and inter-tribal relations rooted in cooperation, sharing and caring;
c) 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
d) Houses, properties, sacred and burial grounds.
These guidelines shall cover the following programs/projects/activities:
a) Exploration,
development, exploitation and utilization of natural resources for
commercial purposes within ancestral domain/lands, by IPs and non-IPs
alike;
b) Research
on indigenous systems, knowledge and practices related to agriculture,
forestry, watershed and resource management systems and technologies,
medical and scientific concerns, Bio-diversity and bio-processing,
including the gathering of biological and genetic resources;
c) Archeological explorations, diggings, excavations an access to religious sites;
d) Activities that would impinge on their spiritual and religious traditions, customs and ceremonies, including ceremonial objects;
e) Programs, projects and activities that would lead to the displacement and/or relocations of indigenous peoples;
f) Entry of migrants an other entities who intend to do business or engage in development activities inside the ancestral domains;
g) Management of protected and environmentally critical areas, and other joint undertakings within ancestral domains;
h) Implementation of government reforestation and infrastructure projects;
i) Activities that may adversely affect the airspace, bodies of water and lands of the ancestral domains;
j) Policies affecting the general welfare and the rights of ICCs/IPs;
k) Occupation
of military or paramilitary forces or establishment of temporary or
permanent military facilities within the domains; Military operations
traversing ancestral domain areas may be allowed without the required
FPIC only when the same is made in connection with hot pursuit
operations and the duration is not to exceed the period of seven (7)
days; and
l) Other activities or undertaking similar or analogous to the foregoing.
II. PROCEDURE AND PROCESS REQUIREMENTS
FOR THE ISSUANCE OF CERTIFICATION PRECONDITION
AND THE FREE AND PRIOR INFORMED CONSENT
SECTION 7. Endorsement
of Concerned Agency. — The application for lease, license, permit,
agreement, and/or concession to implement or operate
programs/projects/activities in ancestral domains is directly filed by
the proponent to the concerned government agency for compliance of the
agency’s applicable regulatory requirements, who in turn, endorses it to
NCIP for certification precondition as required by the IPRA. The
endorsement is to be addressed to the NCIP Chairperson through the
Ancestral Domains Office. Request for certification precondition coming
directly from the proponents will not be acted upon. If
the undertaking is proposed to be had by the ICC/IP shall only verify
if the same is in accordance with their own ADSDPP. If the undertaking
is proposed to be had in their own ancestral domain area by an IPs who
are members thereof, NCIP shall verify if the same is in accordance with
the community’s own ADSDPP and compliance with the requirement of FPIC. For
verification purposes, NCIP field office shall always be informed by
the proponent IP or group of IPs of any undertaking that requires the
FPIC of the ICC/IP community to which they are members as provided in
these guidelines. In the absence of such ADSDPP, the NCIP shall assist the ICCs/IPs in the formulation of the required ADSDPP. Collaboration
of accredited NGOs in this undertaking will be recognized. In the case
of an IP or a group of IP proponents who are members of the same
community where the undertaking is proposed to be had, NCIP shall make
sure that the proponent/s is or are not made to appear as such under any
scheme or arrangement by any person or entity who has the intention of
circumventing the law requirement on certification precondition and the
FPIC. If the undertaking is propose to be had by
an IP individual or a group of IPs who is or who are not members of the
ICC/IP community, the proponent/s shall have to file it with before the
appropriate government agency regulating the conduct of the proposed
undertaking for compliance of the agency’s applicable regulatory
requirements, and upon endorsement by the concerned agency to the NCIP,
The application shall undergo the required activities for certification
precondition.
SECTION 8. Requirements
from the Endorsing Agency. — The endorsement letter should enclose the
report on the nature and extent of the proposal and the indicative map
of the applied site including the outlying impact or affected areas.
SECTION 9. Conduct
of Field-Based Investigation. — The field-based investigation is the
first step in the process required for the issuance of certification
precondition. It is done to ascertain whether or not the site applied
for falls within, contains the whole, or overlaps a portion of an
ancestral domain area, whose boundaries on the ground may have already
been predetermined and secured by an existing recognized tenurial
instrument, or in its absence, is recognized as traditionally belonging
to a particular ICC/IP as part of their ancestral domain as defined
under Section 3 (a) of the IPRA. For this purpose, it is assumed that
the site applied for issuance of certificate precondition falls within,
contains the whole, or overlaps a portion of an ancestral domain of
ICCs/IPs until proven otherwise. It is the duty
of the team conducting the field-based investigation to locate the IP
community nearest to the site applied for the issuance of certification
precondition to determine whether or not the site falls within, contains
the whole, or overlaps a portion of an ancestral domain of ICCs/IPs. The detailed steps in the conduct of the field-based investigation are as follows:
a) Within five (5) working days from receipt of the endorsing agency, the Chairman, through ADO directs the concerned Regional Director to constitute the field-based investigation (FBI) team and designates a team leader. Members
of the FBI team shall not be less than five (5), two shall come from
the Regional Office and the other three shall come from the concerned
Provincial Office or the Community Service Center; The FBI Team shall be
issued with a Work Order by the Regional Director for the purpose of
conducting the field-based investigation;
b) The
FBI team first conducts assessment of secondary sources of data before
they proceed to inspect the actual project site and the outlying impact
areas within fifteen working days from receipt of the Work Order;
c) Within
fifteen (15) working days after the conduct of the field-based
investigation, the FBI team prepares a report with recommendation to the
Regional Director for assessment and proper action;
d) Within
ten (10) working days from receipt of the report from the FBI, the
Regional Director shall forward the said report with appropriate
recommendations to ADO;
e) The ADO,
after proper evaluation of the reports an endorsement of the concerned
Regional Director shall cause the issuance of the Certification
Precondition. However, ADO shall not act on recommendations irregularly evaluated and endorsed by the Regional Director;
f) Within
seven (7) working days from receipt of the report/endorsement, the ADO
Director issues the certification precondition or appropriate document
to the requesting agency.
SECTION 10. Contents of the Field-Based Investigation and Assessment Report.
The field-based
investigation and assessment report shall reflect both the assessment of
relevant secondary data and results of actual site inspection. The
report duly signed by the FBI team leader and properly endorsed by the
Regional Director shall contain the following minimum information:
a) Date of report;
b) Assessment of relevant secondary data, indicating source of data;
c) Dates or site of field-based investigation;
d) Location or site of field-based investigation;
e) Names and designation of authorized FBI Team;
f) Specific objective or purpose of the field-based investigation;
g) Specific names of places actually visited;
h) Names of persons interviewed, indicating their positions in the community;
i) Statement of actual observations and/or comments gathered;
j) If
the report indicates an overlap to an ancestral domain, the estimated
population of indigenous peoples in the area should be indicated. It
shall also include preliminary documentation of the existing indigenous
consensus-building/decision making processes including the
identification of the authentic tribal/community leaders, and to
determine initial estimate of ICC/IP population in the affected areas;
k) Assessment of observations and/or comments;
l) If
FPIC is found to be a requisite, estimate of cost to be deposited by
the proponent as fees to answer for the expenses needed in conducting
the required FPIC proceedings; and
m) Recommended action and endorsement to the ADO.
SECTION 11. Attachment
to the Field-Based Investigation and Assessment Report. — Pertinent
documents showing proof of the field-based investigation and assessment
report shall include, but not limited to the following:
a) Endorsement letter of appropriate agency and the required attachments;
b) Copy
of secondary data, if applicable, such as the certification from the
concerned Provincial/Municipal Statistics Office on the ethnic grouping
of the population within the applied and impact area;
c) Approved itinerary of travel;
d) Certificate of appearance from the LGU, Barangay Captain, recognized Elders/Leaders of the ICCs/IPs whenever applicable; and
e) Certification
from the recognized ICC/IP leadership as determined under Section 14
(b) of this guidelines, in the concerned province or municipality on
existence, or otherwise of ancestral domains/lands in the area subject
to investigation.
SECTION 12. Submission
of the Applicant’s Operation Plan. — If the field-based investigation
report requires the free and prior informed consent (FPIC) of affected
ICC/IPs, the concerned Regional Director shall notify, in writing, the
applicant to submit the operation plan of the project as provided in
their proposal within fifteen (15) working days from receipt of the FBI
team recommendation. The concerned Director notifies directly the proponent in writing to submit the project operation action plan. A copy of the notice is furnished to the requesting agency and the ADO. The notice shall also contain information that the applicant may now proceed with the conduct of the FPIC.
SECTION 13. Payment
and Deposit of Fees for Application for Certification Precondition and
the Certification for FPIC; Basis of Determining the Amount of Fee. —
The FBI Fee and FPIC Fee shall be paid or deposited in the manner
provided as follows:
a) The
applicant or proponent is required to pay the fixed amount of Five
Thousand (P5,000.00) pesos as Field-based Investigation Fee for the
conduct of field-based investigation to be paid at the NCIP regional
office concerned. The deposit shall be properly documented;
b) If
the result of the field-based investigation reveals the necessity of
securing the FPIC of the community concerned, the applicant or proponent
is required to deposit before the concerned NCIP regional office the
FPIC Fee in the amount as estimated by the said office and as contained
in the FBI report submitted by the region. the NCIP regional office
shall make the estimation on the basis of the data gathered during the
conduct of the field-based investigation, taking into account the cost
of transportation, food allowance and other necessary expenditures
needed for the conduct of FPIC proceedings in the community viz-a-viz
the number of days and the number of participants;
c) Remaining
unspent amount collected as FPIC Fee shall be duly accounted for and
shall be returned to the applicant or proponent at the end of the FPIC
proceedings; and
d) Collection
of FPIC Fee on cost estimates made without sufficient basis shall be
considered as an act of illegal exaction of money and shall be proceeded
in accordance with law.
SECTION 14. Mandatory Activities in the Conduct of FPIC Process. — The ADO through the Regional Office shall ensure that the FPIC process include among others, the following:
a) Notices.
Posting of notices in conspicuous places in and around the area of the
concerned ICC/IP community by NCIP that a preliminary consultative
meeting will be had. Said notices shall indicate
the date and venue of the meeting, the objectives and the nature and
scope of the project and identity of the project proponent. Aside
from the posting of notices, personal service of notices by NCIP to the
concerned Council of Elders/Leaders is required, which must be served
at least five (5) days before the intended date of the preliminary
consultative meeting and that their presence is required.
b) Validation
of the List of Elders/Leaders. Aside from the list of elders/leaders as
appearing in the records of NCIP representing a particular ICC/IP
community, the FBI Team shall conduct a random listing of elders/leaders
from the community as identified by name by the members thereof. NCIP
shall facilitate the convention of these elders for the purpose of
validating the authenticity of the names of the elders/leaders as
appearing in the list. In that convention, the
participants will be asked to identify who among themselves are the
recognized leaders of the community and who are not. It
is a qualification process in which those who presented themselves as
leaders/elders will be discerned by the rest of them in accordance with
their customary laws. The purpose is to secure
genuine representations for the community in the negotiations that will
be had between the proponent and the community. It
is a process in which each of them will present himself before the rest
for confirmation as a recognized elder/leader of the community
c) Preliminary
Consultative Meeting. Within fifteen working days (15) days from the
submission on the applicant’s operation plan, a preliminary consultative
meeting shall be conducted within the host community. The
participants to the preliminary consultative meeting are: the
identified council of elders or leaders, the representatives from the
proponent, the NCIP, the representatives from collaborating NGOs an the
civil society operating in the concerned area. The
proponent will be given sufficient time in the presentation and
clarification of their project proposal in the said preliminary
consultative meeting. The Operation Plan and the
scope and extent of the proposal shall then be presented to the elders
by the proponent for understanding, and shall give them the needed
information supporting their proposal, including but not limited to: the
cost and benefits of the proposal to the ICC/IP and their ancestral
domains; presentation of perceived disadvantages or adverse effects to
the community and the measures adopted by the proponent to mitigate
these; and, a statement of commitment to post performance bond to answer
for consequential damages to the community. In the discussions to follow, the other representatives will be given their turn in presenting their views to the proposal. The
oppositors to the proposal, if there are any, shall likewise be given
equal time in the said meeting in the presentation of the presentation
of the basis and reasons of their opposition thereto for the
appreciation of the council of elders/leaders. NCIP’s
presence in the meeting is mandatory for the purpose of facilitating
the conduct of the meeting and to provide the participants education and
information on IPRA particularly on the FPIC and the rights and
privileges of the ICCs/IPs. The mechanics of the meeting shall be set by the NCIP representative after due consultation from all parties concerned. The council of elders/leaders shall decide whether another meeting is necessary to complete the process.
d) The Consensus Building.
Within a period of fifteen days (15) after the termination of the last
and final preliminary consultative meeting/s, the Elders/Leaders shall
complete the conduct of their own consultation meetings with their own
consultation meetings with their members in the community employing
their own traditional consensus building processes in order to further
discern the merits and demerits of the proposal as presented in the
preliminary consultative meeting. During this
period, nobody from the participants in the preliminary consultative
meeting, except the NCIP representative, will be allowed to stay in the
community. NCIP’s role in the community for the duration of the period is to document the community proceedings that is being had. At
the end of this process, the elders/leaders may, at the option, call
again for another meeting before the conduct of the required community
assembly is finally had, like when there are negotiation points that
they wanted to present that requires further discussions with the
applicant.
e) Community Assembly. Within
fifteen (15) after the lapse of the period provided for the community
consensus building conducted by the ICC/IP Elders/Leaders, NCIP shall
cause the conduct of Assembly of all the members of the community as
represented by the household heads. It is on this occasion that the decision of the ICC/IP with respect to the proposal will be made known. NCIP will determine by raising of hands the number of those who would vote for or against the proposal. The
leaders or elders will be required to explain the vote had, and if the
decision is for the proposal, the terms and conditions of the giving of
their consent thereto. The decision as explained
shall be properly documented, and the terms and conditions approving the
proposal shall be translated in the form of a MOA to be signed by both
parties with NCIP, represented by the Chairman, signing as the third
party. The person to sign, representing the
community, shall be chosen by the council of elders/leaders among
themselves, duly authorized by them. A translation of MOA to the dialect of the ICC/IP shall then be prepared.
SECTION 15. Issuance
of the Certificate of Free and Prior Informed Consent. — The concerned
ICC/IP community shall finally issue the free and prior informed consent
through their authorized representative(s) upon signing of the
Memorandum of Agreement. Likewise, this shall be written in English or Tagalog and in the appropriate IP language. Signatures or thumb marks must be affixed on each page of the document signifying consent or rejection. In
case of rejection, the ICC/IPs shall state in the document of rejection
whether or not they shall entertain alternative proposals of similar
nature. Any alternative proposal shall be subject
to another FPIC of the IPs/ICCs in accordance with the foregoing
procedures and requirements. However, no FPIC process shall be repeated once a particular proposal has already been rejected by the ICC/IPs.
SECTION 16. Who
Shall Give their Free and Prior Consent. — The scope of the ICCs/IPs
whose free and prior informed consent is required shall depend upon the
impact area of the proposed policy, program, projects, plans, activity
or undertaking, such that: a) When the
policy, program, project, plan, activity or undertaking affects only a
particular community shall give their FPIC. But the Council of
Elders/Leaders representing the whole ancestral domain shall be the one
to determine whether or not a given policy, program, project, plan,
activity or undertaking affects the whole ancestral domain or any
portion of it. The determination of the scope by the council, may be challenged by way of a petition filed before the Regional Hearing Officer. The
Petition must be duly signed by a majority of the members of the whole
ancestral domain area with the allegation that the Council have not
reconsidered their extermination of the scope despite their opposition
thereto;
b) When
the policy , program, project, plan activity or undertaking affects the
entire ancestral domain, the consent of the concerned ICCs/IPs within
the ancestral domain shall be secured; and
c) When
the policy, program, project, plan activity or undertaking affects a
whole range of territories covering two or more ancestral domains, the
consent of all affected ICCs/IPs communities shall be secured.
SECTION 17. Non-transferability
of Free and Prior Informed Consent. — The FPIC for a particular
proposal shall not be transferable to any other party, except in case of
merger, reorganization, transfer of rights, acquisition by another
entity, or joint venture: Provided, That there will be no changes in the
original plan and the same shall not prejudice the interest, rights and
welfare of the concerned ICC/IP community.
SECTION 18. Endorsement
of the FPIC Certification to the Ancestral Domains Office. — The
Regional Director shall endorse the FPIC Certification to the Ancestral
Domains Office for proper evaluation and subsequent issuance of
certification precondition. The endorsement shall enclose copies of the following:
a) Notices
of every meeting for purposes of securing the FPIC written in English
or Pilipino and in the IP language as authorized by the community
elders/leaders;
b) Minutes
of all meetings an proceedings where the proponent had presented,
submitted and discussed all the necessary information on the proposed
program/project, policy or plan to be conducted/implemented in a process
and language understood by the ICC/IPs concerned. The
minutes must be written in English or Pilipino and the appropriate IP
language, validated by those who attended the meeting or assembly;
c) Minutes
of consultation meetings with all members of the ICC/IP communities
affected by the request for certification precondition;
d) Minutes of negotiation meetings on the terms and conditions for granting the FPIC;
e) Minutes of the validation of the decisions of the authorized ICC/IP negotiations by all members concerned;
f) Sketch map of project impact area;
g) Documentation of customary practice on consensus building; and
h) Census of population of the ICC/IP Community.
SECTION 19. Process
Requirement of the Issuance of Certification Precondition. — If the
area being applied for and impact area is non-ICC/IP area and/or does
not overlap with an ancestral domain based on the field-based
investigation, the appropriate certification precondition is issued
immediately by the Commission through the concerned Regional Director
where the area is situated. On the other hand, if the field-based
investigation report indicates the presence of ICC/IPs in the applied
and impact areas or an overlap to an ancestral domain/land, the free and
prior informed consent through the customary consensus-building process
of the concerned ICC/IPs is required before the issuance of the
certification precondition.
SECTION 20. Issuance
of the Certification Precondition. — The appropriate certification
precondition shall be issued within fifteen (15) working days from
receipt of the pertinent recommendation or endorsement of the concerned
Director. ADO
shall endorse it for approval by the Commission. Attached in the
issuance is the MOA and FPIC certification by the concerned host ICC/IP.
SECTION 21. Non-Consent by the Concerned ICC/IP. The
concerned ICC/IPs, in case of non-consent or unfavorable decision,
shall state in writing the specific reasons for non-consent thereon. The
non-consent in writing shall be signed/thumb marked by the authorized
leaders/elders in every page of the paper who shall thereafter submit
the same to the Regional Director. The latter shall in turn, submit said document to the ADO within five (5) working days from the submission of the written non-consent. The ADO,
within five (5) working days from receipt of the non-consent shall
prepare the report and endorsement of the Order of Denial to the
Commission. Within ten (10) working days thereof,
the commission shall issue appropriate action thereon to be transmitted
to the applicant and endorsing agency through the ADO,
III. MEMORANDUM OF AGREEMENT
SECTION 22. The
Memorandum of Agreement. — If the result of the FPIC process is
favorable to the proposal, the agreements and conditions discussed in
the said process are embodied in a Memorandum of Agreement (MOA)
between/among the ICC/IPs, the proponent and the NCIP and any other
party equally involved and witnessed by their respective members. In
case of change of proponent personalities in the future, the terms and
conditions of the MOA shall bind the new proponent without necessarily
executing another MOA. The agreement must be written in English or Tagalog and in the appropriate IP language. The
parties executing the MOA shall acknowledge the terms, contents and due
execution thereof before a notary public or persons authorized by law
to administer oath.
SECTION 23. Contents of the Memorandum of Agreement. — The MOA shall stipulate, among others, the following:
a) The detailed premises of the agreement;
b) All parties involved;
c) Inclusive dates/duration of the agreement;
d) The
benefits to be derived by the host ICCs/IPs indicating the type of
benefits, specific target beneficiaries as to sector and number, the
period covered, and other pertinent information that could guide the
future monitoring and evaluation of the MOA;
e) Use
of all funds to be received by the host ICC/IP communities, ensuring
that a portion of such funds shall be allocated for development
projects, social services and/or infrastructures in accordance with
their development framework;
f) Detailed measures to protect IP rights and value systems;
g) Detailed
measures to conserve/protect any affected portion of the ancestral
domain critical for watersheds, mangroves, wildlife sanctuaries, forest
cover, and the like;
h) Responsibilities of the proponent as well as the host ICC/IP community;
i) The MOA monitoring and evaluation schemes; and
j) Penalties for non-compliance or violation of the terms and conditions.
SECTION 24. Signatories to the Memorandum of Agreement. — The signatories of the MOA shall be:
a) For the ICC/IP community, all authorized community elder/traditional leaders identified and recognized by the community;
b) For
corporations, partnerships or single proprietorship entities, the
authorized officers representatives, or partners as per Board resolution
prepared therefor; and
c) For the NCIP as third party, the Regional Director by authority of the Commission.
SECTION 25. Hearing
of Complaints on the Memorandum of Agreement. — In case of any
complaint on the MOA implementation, this shall be filed at the NCIP
Regional Hearing Office for appropriate action. The decision of the Regional Hearing Officer may be appealed to the Commission en Banc. The decision of the Commission en Banc is appealable to the Court of Appeals. The
NCIP Regional Hearing Office shall acquire jurisdiction over such
complaints only upon written certification from the Council of
Elders/Leaders that the same has not been resolved in accordance with
their traditional conflict resolution institutions applying their
customary laws and practices.
SECTION 26. Applicability
of Customary Laws and Imposition of Sanction/s for Violation of the
Terms of the MOA. — Any person/party who willfully violates or fails to
comply with his duty or obligation under the provisions of the
Memorandum of Agreement may be proceeded in accordance with the
customary laws and practices of the host or concerned ICCs/IPs and
sanctions may be imposed in accordance therewith: Provided, That the
sanctions is not cruel and humanly degrading. Its applicability shall be without prejudice to the Commission’s exercise of its visitorial and injunction powers. Such
customary law or practice shall form part of the documents supporting
the Memorandum of Agreement between the concerned parties.
SECTION 27. Action
of the Commission. — The action of the Commission on the petition shall
be embodied in a resolution, a copy of which shall be forwarded to the
Ancestral Domain Office.
IV. ROLE/RESPONSIBILITIES OF ALL PARTIES CONCERNED
IN THE PROCESSES OF THE CERTIFICATION PRECONDITION
SECTION 28. Role/Responsibilities
of the Proponent. — At the minimum, the proponent is obliged to comply
with the following to ensure the success of the field-based
investigation and/or the consensus building process:
a) Prepares and submits proposal of the project;
b) Presents
and submits in writing to the IP community and the NCIP in a language
understandable to the concerned community, the details of all the
possible impact of the proposed policy, program, project or activity
upon the ecological, economic, social-cultural aspect of the community
as a whole. Such document shall clearly indicate how adverse impacts can be avoided or mitigated; and
c) Payment of the field-based investigation fee for the conduct of the Field-based investigation. If
the result of the FBI requires the need to secure the FPIC of the
community, submit the required Operation Plan and deposit of the FPIC
fee to answer the expenses for the conduct of the FPIC process in the
amount as determined in the manner provided in these guidelines.
SECTION 29. Role/Responsibilities
of the ICCs/IPs concerned. — On its part, the affected ICCs/IPs shall
comply with the following to ensure to the success of the consensus
building process:
a) Determine the customary practice of consensus building to be followed in the conduct of FPIC process. This
shall be made in writing in their own dialect and shall be translated
into the major dialect of the community and shall be ratified by all
heads of the families and clans or their authorized representatives;
b) Identify in writing their elders/leaders or representatives of their family or clan who can sign on their behalves;
c) The council of Elders/Leaders shall be with the NCIP for record and recognition purposes. In
no case shall FPIC signatories be represented by heads of coalitions or
organizations who live outside of the concerned ICC; and
d) Keep the original copy of the MOA.
SECTION 30. Role/Responsibilities of the NCIP. — The different offices of the NCIP at various levels shall be responsible as follows:
a) The Regional Office
1. Collects and issues official receipt to the proponent for the inspection fee for the conduct of the FBI;
2. Conducts the census or genealogical survey of the ICCs/IPs concerned;
3. Documents the customary practices on consensus building among the affected ICC/IPs;
4. Evaluates and coordinates the FPIC Action Plan;
5. Facilitates registration of the authentic IPOs, Elders Leaders and representatives of the families and clan;
6. Facilitates
the execution of the MOA and endorse to the Commission, through the
Director of the Legal Affairs Office of the NCIP, for review and
authority to sign as third party;
7. Monitors the compliance of the terms and conditions stipulated in the MOA; and
8. Keeps certified true copy of the MOA.
b) The ADO
1. Evaluates and validates, if necessary, the FBI and the conduct of the FPIC process;
2. Monitors the FBI/FPIC process; and
3. Keeps duplicate copy of the MOA.
V. PROHIBITED ACTS AND SANCTIONS
SECTION 31. Prohibited
Acts. — After the filing of the application and during the period that
the application is pending, any of the following acts or omissions are
hereby declared either acts prejudicial to the interest of the IP
community in the attainment of their consent or is an act in
circumvention of the intent of the law in requiring the free, prior and
informed consent of ICC/IP community and are, therefore, prohibited:
a) By the applicant
1. Employment
or use of force, threat, coercion, intimidation, at any degree or in
any manner, including those done by individuals or group of persons
acting for the applicant;
2. Bringing of firearm/s in the community during visits by the applicant or group of persons acting for the applicant. When needed, armed security shall be obtained from local police authorities or the AFP as requested by the NCIP;
3. Bribery
or promise of money, privilege, benefit or reward other than what is
presented by the applicant/proponent during the preliminary consultative
meeting with the Council of Elders;
4. Clandestine
or surreptitious negotiations with IP individuals or members of the
community concerned done without the knowledge of the council of leaders
or elders;
5. Delivery to the community or any of its members donations of any kind.
b) By NCIP Officer Employee
1. Acceptance or receiving of gifts or money from the applicant;
2. Consorting with the applicant or with any person connected to or mediating for the latter;
3. Deliberate
failure to act appropriately on complaints coming from the community
concerning prohibited acts committed by the applicant or any of its
representatives;
4. Gross
negligence or deliberate omission to perform his duty required of him
by these guidelines in connection with his function and within his
authority to perform; and
5. Acting on or performing his duty on consideration of future reward, promise of money, privilege or benefit from the applicant.
c) By the IP Community or Member
1. Solicitation of any kind from the applicant;
2. Acceptance or receiving of gifts or money from the applicant;
3. Consorting with the applicant or with any person connected to or mediating for the latter; and
4. Giving
or promising to give his consent in consideration of future reward,
promise of money, privilege or benefit from the applicant other than
what has been provided for or explained by the applicant to the Council
of Elders or Leaders during the consultation meetings.
d) Other Prohibited Acts by GAs/LGUs/NGOs/ & other groups
Undue influence to
the community, either to the members or their representatives, exerted
by representatives of non-government organizations or representatives of
government agencies or local government instrumentalities, including
barangay officials and their functionaries, and those made by other
entities or groups with religious affiliations, except those made during
the consultation proceedings or meetings conducted in accordance with
the manner and procedure as provided for in these guidelines.
SECTION 32. Sanctions.
— Administrative sanctions shall be imposed by the Commission only
after due notice and the parties are given the opportunity to be heard
as follows:
a) For the applicant
Commission of any
of the prohibited acts by or attributable to the applicant, shall be
sufficient ground for the non-issuance of the certificate precondition
by the NCIP, or if already issued, a ground for its revocation. The commission may proceed against the applicant motu proprio or upon complaint. In
addition, serious violations shall be a ground for disqualification for
future applications for certificate precondition within ancestral
domain areas, without prejudice to filing of appropriate criminal action
against the offender under IPRA or the Revised Penal Code and the
special laws. The violation is considered grave
when the commission of the prohibited act is intentional and have
resulted to loss of life or serious damage to property of an IP member
of the community, committed by means of, but not limited to, employment
or use of force, threat, coercion, intimidation, violence, including
those done by individuals or group of persons acting for the applicant. The
imposition of disqualification can be lifted only upon petition by the
individual or entity upon whom the disqualification was imposed, stating
the grounds why the disqualification should be lifted. No
such petition shall be entertained by the Commission without the
favorable recommendation of the IP community concerned whose rights were
seriously violated.
b) For the IP Community
The Commission
shall formally call the attention of the Council of Elders/leaders
concerned for him to be proceeded against in accordance with their own
customary laws. If the extent of the commission of the prohibited act
would unjustly affect the outcome of the community consent proceedings,
the said proceedings shall be suspended by the Commission until after
the Council has shown to the Commission that they have already addressed
the prohibited act done by wrongdoer in accordance with their customary
laws.
c) For NCIP Officer or employee
Prohibited acts
committed by any officer or employee shall, upon finding of prima facie
evidence, immediately divest him of his authority to be part of the
proceedings upon order of the Chairperson of the Commission, and he/she
will be proceeded against administratively in accordance with the Civil
Service Rules and Regulations on discipline, without prejudice to the
filing of appropriate criminal charges.
d) For GAs/LGUs/NGOs and other groups or individuals
Prohibited acts
committed by any officer or employee of any GAs/LGUs or those committed
by members of NGOs and other groups or individuals shall be censured
applying the Commission’s subpoena and contempt powers.
SECTION 33. Complaint
to Censure the Person or Entity Responsible for Commission of
Prohibited Acts; Order of Suspension. — Complaint filed by any aggrieved
party in the proceedings for the censure of the person, group of
persons or entity alleging commission of any of the prohibited acts
provided above, shall not suspend the proceedings had, except those acts
complained of, if proven, would substantially affect the credibility
and integrity of the outcome of the proceedings as determined by the
commission. The complaint shall be filed before
the NCIP representative heading the field-based investigation and
authorized by these guidelines to facilitate the proceedings. It
is the duty of the NCIP representative receiving the complaint to look
into the sufficiency of the complaint by requiring the complainant to
substantiate his complaint by supplying all the data and information
needed for the appreciation of his complaint. His findings shall be endorsed to the Commission en banc through the Regional Director. The
Commission en banc, after receipt of the endorsement shall immediately
determine whether the act/s complained about would substantially affect
the credibility or integrity of the proceedings had. If
so, the Chairperson shall immediately order the suspension of the
proceedings still had with notice to all parties concerned of the
reasons for the suspension, and order the Regional Director to ask the
complainant to formally file a petition, in which case, the petition
shall be resolved by the Commission in the manner provided for in the
succeeding paragraph. Otherwise, no suspension of the proceedings shall
be declared but the person or entity complained about shall be asked to
explain in writing within fifteen (15) days from receipt thereof why he
should not be censured for the prohibited acts committed.
SECTION 34. Petition
for notification or Non issuance of Certification precondition. — The
issuance of Certification Precondition by the NCIP in connection with
any FPIC obtained or denied by the community can be withheld only upon
determination of the grounds raised in a petition duly filed by any
party contesting the issuance thereof. The
petition for non-issuance of the certificate precondition can be given
due course only when the same is raised on the ground of commission of
any of the prohibited acts as declared above or on ground of
irregularity in the procedure as provided in these guidelines that
substantially affects the interest of the parties involved. The
petition shall be filed within the period of ten (10) days from the
date of the decision of the community in the assembly as provided in
these guidelines and before the execution of the MOA as required. The petition shall be resolved by the Commission within the period of thirty (30) days from date of filing. The procedure for the resolution of the petition shall be governed by the special rules that this Commission shall provide for. The
Commission may either declare the proceedings had as a nullity and
determined the appropriateness of holding another proceeding or declare
the proceedings as already done, and/or impose the administrative
sanctions herein provided for the commission of any of the prohibited
acts.
SECTION 35. Waiver
of Right to FPIC; Injunction for Acts Circumventing the Purpose of FPIC
Process. — Programs, projects, plans activities or any development
assistance or intervention that do not involve issuance or intervention
that do not involve issuance of a license, permit agreement authority or
concession from any government agency, regulatory body or local
government agency, regulatory body or local government units, solicited
by ICC/IP community themselves from whatever sources and in any form,
made through their council of elders/leaders, do not require anymore
compliance of the FPIC requirement as provided in these guidelines,
provided the solicitation is signed by the majority members of the
community. The ICC/IP community is deemed to have waived their right to FPIC by that unilateral act of solicitation. However,
in order to ensure that this exemption is not utilized as mode of
circumventing the law requirement on FPIC, NCIP shall validate the
purpose of the solicitation by determining whether or not the
solicitation made bears the approval of the majority of the council
members and determine whether or not the same was made in accordance
with the ICC/IP community’s ADSDPP. If the
solicitation is found to be unauthorized or if the solicitation is found
to be contrary to the community’s ADSDPP, NCIP shall require the
Council of Elders/Leaders to undergo the process of FPIC of the
community members as provided in these guidelines. Otherwise,
the Commission shall exercise its injunction powers upon written
complaint of a majority of the members of the community to enjoin the
conduct or continued implementation of the program, project, plan or any
development assistance or intervention until the solicitors have
complied with the requirement of FPIC process in order to safeguard the
rights of the other members of the community and protect their interest. The
complaint, which is required to be signed by a majority of the members
of the community, shall be filed before the Regional Hearing Officer of
the NCIP in the region. NCIP in the region. Its decision is appealable to the Commission en Banc. The appeal shall be perfected within the period of ten (10) days from receipt of the decision.
VI. FINAL PROVISIONS
SECTION 36. Applicability
to Pending Applications. — This guidelines shall apply to all pending
applications for issuance of Certification Precondition and Issuance of
Certificate of Free, Prior and Informed Consent by the IP/ICC.
SECTION 37. Separability
Clause. — In case any clause, section, sentence, or provision of this
Administrative Order or any portion hereof is held or declared
unconstitutional or invalid by a competent Court, the other sections or
portions hereof which are not affected thereby shall continue to be in
full force and effect.
SECTION 38. Repealing Clause. This administrative Order repeals NCIP AO-03, Series of 1998. The
provisions of other Circulars, Memoranda, Administrative Orders, issued
by this Commission, inconsistent herewith or contrary to the provisions
hereof are hereby repealed or modified accordingly.
SECTION 39. Effectivity.
— This Administrative Order shall take effect (15) days from its
registration in the Office of the National Administrative Register, U.P. Law Center, Diliman, Quezon City.
Adopted: 19 Feb. 2002
Commissioner
Commissioner
Commissioner
Commissioner
Commissioner
Commissioner
Chairperson