By Rocky Ngalob
FOR four years now, I have sat behind the less-occupied table at the NCIP-CAR office, dissecting papers on Free Prior and Informed Consent (FPIC) processes. As the FPIC Focal for the region, I am barred from participating in the conduct of the Free Prior and Informed Consent, otherwise known as the FPIC process, and I am only limited within the confines of my desk while the rest of my colleagues do fieldwork. Being chained behind the desk, for me, is a sacrifice that I must make, much as I want to join in the conduct of FPIC, to maintain impartiality in my reviews and evaluation of the process.
For starters, the FPIC, more than just as a process or procedural, is likewise, a substantive right vested on the Indigenous Peoples (IPs). Of which, can only be attained if the FPIC process is implemented and observed with utmost extraordinary diligence. It is the most powerful weapon recognized by the landmark legislation RA 8371 or Indigenous Peoples Rights Act (IPRA). It recognizes the inherent rights of the IPs to decide what development is to be implemented within their Ancestral Domains. Developments that would affect the well-being of the IPs are subject to scrutiny and by the IPs themselves, and for them to resolve, guided by their respective customs and traditions, on whether or not they will consent or reject its entry. And to ensure smooth and truthful recognition of FPIC, the NCIP, being the main implementing agency of the law, has formulated guidelines in the conduct of the FPIC. To date, the prevailing FPIC guidelines are contained in NCIP Administrative Order 3 series 2012. Here, NCIP has laid down a procedural process of the FPIC as mandatory steps in order to realize the IPs’ substantive rights to self-determination. It is here where my world revolved in the past four years.
I am biased in all of the reviews and evaluations I have undertaken. My bias however is not related to whether my stand is for the proposed project or not. My views towards mining, logging, dams, etc. are immaterial and do not affect in any way my work when I enter the FPIC review zone. In fine, my bias is tilted towards the strict execution of the FPIC guidelines or NCIP AO 3 S 2012.
Like any other laws and policies, the FPIC guidelines are not perfect. In fact, if you look into the genealogy of the prevailing FPIC guidelines, you will see that it is a product of a series of amendments. The amendments that sprouted from mistakes and errors were then brought to the attention of the NCIP by the different cause-oriented groups and the academe. Thus, the series of revisions leading to NCIP AO 3 S 2012.
Your hatred towards the FPIC guidelines now is nothing compared to its predecessors, believe me.
Now in its ninth year, despite the revisions made, NCIP AO 3 2012, is still not completely immune to mistakes and errors. Some may be equated to the FPIC guidelines itself, but undeniably, one that surfaced in the comments of some cause-oriented groups which was not addressed in NCIP AO 3 2012, was the reorganization or restructuring of NCIP.
One needs to understand that the implementation of the FPIC guidelines is effected within the restrictions on what the national lens views the IP situations on a national scale. It forces the IPs, despite the relativity of customs and traditions, to fit into one pair of shoes sewn by NCIP. Though the intention for uniformity in the FPIC process is quite laudable and its intention anchored on good faith, it however promotes the non-recognition of the uniqueness and peculiarities of each IP group dwelling in their respective Ancestral Domains.
Because of this, NCIP in the conduct of the FPIC process, should be judicious in promoting a more community-centered based FPIC starting with the Community-Consensus-Building and/or Decision-Making process. Absent the NCIP documented and duly validated Indigenous Political Structure (IPS), the IP community must be given due preference in determining their Decision-Making process. The IPs, through a process of community assembly, complete with massive public announcements and posting of notices, should be given the discretion to determine their decision-making process, and have the same affirmed by them. It is not NCIP that imposes what form of decision-making the IPs should follow.
Through the process of a community assembly, it is expected that this will entail a lot of discourse between and among the IPs, as it should be. All of the IPs, not only those settled inside the impact areas, but all IPs dwelling within the affected Ancestral Domain, should be accorded their share in participating, and all of their sentiments thereto given recognition. It will be a joy to see IPs embracing development projects like dams, mining logging, etc., to bat heads, by means of customary discourse, with their fellow IPs who ground themselves within their very own traditional concept of resource management. All the more, it will be a momentous achievement, not only for the IPs but for NCIP as well, if these clash of views can be reconciled using the IP’s very own customs consequential to either favorable consent or rejection of the project.
This is quite ideal and some might say it is not achievable, considering that not all IPs share the same views towards proposed projects that are mostly intrusive by nature and that there will always be opposition to the project. The contrasting views create division leading the IPs to shift into a foreign form of decision-making that is outside their customs and traditions – like voting on the issue wherein the majority prevails. A decision-making through votation is permissible, only if the IPs themselves, through a community assembly acting as one single unit, decide to adopt the foreign concept via votation in disposing of their consent or rejection.
In my reviews, a lot of IP communities have conformed to the said foreign concept of votation in their decision-making. Perhaps some IP communities nowadays are open to integrating foreign concepts in their decision-making. Thus, is it only prudent on my part to go through the voluminous FPIC activity reports, transcripts, attendance sheets, Memoranda of Agreements, and other related documents to ascertain for sure that the decision-making via votation was indeed the decision made by the IPs resulting from their community assemblies? Without any substantial amount of reason, indicated in the FPIC related documents, that the IP communities wittingly severed themselves from the customary and traditional decision-making, it will be strictly interpreted as a void consent considering that the right to give consent, absent the IPS giving such right to traditional elders/leaders, is lodged on all of the IP Ancestral Domain holders dwelling, and acting as one, within the domain.
Even with the presence of a documented IPS affirming that the Decision-Making is lodged on IP elders, the same still merits scrutiny and should not be presumed. This is because none in the written text of history will tell you that IP Elders will dispose of their decision via votation and that the majority will prevail. Our history dictates that IP elders, bearers of great wisdom, are consciously grounded and immersed with their respective IP communities. They dispose of their decisions based on what is best, not only for their own Ancestral Domains but also for other adjacent territories. They have a kin mindset of restorative justice in conflict resolutions. Their decision-making is deeply attached to their IP community that they are in resolutely and continuous consultation with their constituents before settling into a decision that would affect their domain.
I have yet to see a decision-making that has emanated primarily from the IP communities, acting as one, achieving unanimous acceptance to a project. Most of the decision-making, negotiation, and signing of the Resolution of Consent and MOA, were done by a selected few or group of individuals. Their authorization was delegated by IP Ancestral Domain Holders through Community Resolutions. This is warranted by the NCIP AO 3 S 2012. However, this form of decision-making, the participation of the IP communities in the FPIC process, as per NCIP AO 3 S 2012, in my observation, will be detached after the delegation of authority to the selected few – will later-on be reflected as their IP elders/leaders.
These are just some of the general observations in my four years as the FPIC Focal for NCIP-CAR. A lot of contentious issues and problems evolve as the years go by. They are all sui generis. A problem for a certain project, in the conduct of the FPIC process, in one province in CAR is different from the other neighboring provinces. However, all of them share one common root of the problem. IPs, in the exercise of their right to FPIC, are constrained within the restrictions that NCIP AO 3 S 2012 or the FPIC Guidelines allow them to exercise. Needless to state, they are tightly tied to the text of the FPIC Guidelines. And most of the time, these guidelines are used against them.
As of this writing, one FPIC Process is currently under deliberation by the NCIP Commission En Banc (CEB). The project, if given the nod, will inundate the residential, agricultural, and sacred grounds of the IPs forcing them to be relocated away from their Ancestral Domain. Said FPIC Process poses recorded procedural and substantial defects in the execution of the NCIP AO 3 S 2012 and the spirit of the FPIC as a whole. As the highest policy and decision-making body of the NCIP, the CEB now holds a gargantuan task before them. Any decision and/or action that they will be declaring thereof will affect and will serve as a precedent to all pending FPIC processes, not only for CAR but all regions in the country.
The CEB will soon make a choice to either; conform to the community decision of the IPs that were duly affirmed and validated during the community assemblies wherein all IP residents will have the right to decide the fate of the project, or will the CEB turn to the supposedly authorized elders/leaders as the mode of decision-making of the IPs. Should they choose the former, they will be protected by the prevailing FPIC Guidelines as the same is a complaint to NCIP AO S 2012. If they however choose the latter, they will need to justify numerous fabricated and forged signatures from the IP communities supposedly giving/delegating authority to selected IPs to consent, negotiate and sign the MOA. They will likewise need to present unchallengeable reasoning as to why numerous considerations were allowed for the benefit of the project proponent despite express prescription from the NCIP AO 3 S 2012.
The correct decision of course is obvious, I just hope and pray that they view the same way all for the benefit of further fortifying and/or strengthening the FPIC Guidelines for the protection and realization of the IPs rights due to them.
If you’re reading the news the project is dubbed as the 150 MW Gened Dam by Pan Pacific Renewable Power Philippines Corp to be situated within the Ancestral Domains of Kabugao and Tawit inhabited by the Isnag/Isneg Indigenous Cultural Communities. I will not go through the results and details of my review and evaluation regarding the proposed project as the same merits a separate story.
The genealogy of the FPIC guidelines teaches us that a dull blade of a knife should be met with friction. The friction from the colliding stone and steel sharpens the edge to efficiently deliver the tool’s envisioned purpose.
All told, allow me to end this reiterating the prefatory statement from my last review and evaluation as FPIC Focal, “the right to FPIC, as one of the sharpest instruments in the IPs’ toolshed, was recognized by the State to ward off repetition of historical injustices, which once cast a dark cloud over the IP domains. FPIC guidelines shall be wielded strictly for the benefit of the IPs and shall be rigidly executed for the IPs’ advantage, and not for another’s convenience. Neither shall it be used to fatigue the IPs into submission, lest the FPIC be misunderstood as the sledgehammer to break open the doors of the Ancestral Domains regardless if it was slammed shut by the IPs.”