“Forging partnership for rights-based development of the Indigenous Peoples”

THE REVISED GUIDELINES ON

FREE AND PRIOR INFORMED CONSENT
(FPIC) AND RELATED PROCESSES OF 2012

ATTY. RONNIE A. BULOTANO

NCIP Davao City Provincial Legal Officer

#solidarityforIPdevelopment
 - Pagtugot nga gikauyonan (consensus) sa tanang
miyembro sa Lumadnong Komunidad/Katawhang
Lumad nga ang proseso sa pagkuha pinasubay sa
ilang customary laws.

FREE and PRIOR INFORMED

- gawasnon ug nahuptan human nga tumang napadayag ang
intensyon sa programa, plano ug
kalihokan, pinasubay sa kalihukan
ug proseso ug sa pinulungan nga
nasabtan sa tibuok komunidad
Operating Principles

A. Empowerment
gawasnong mopaningoha alang sa ilang
pang-ekonomiya, sosyal ug kulturanhong
lamboan pinaagi sa pagpartisipar sa:

1. Decision – making
2. Determination of priorities
3. Practice of justice system
4. Peace-building process
 Operating Principles

B. Consensus Building and decision-

making process
Pagpartisipar sa proseso sa pagsalmot/paghimo ug
desisyon pinaagi sa

Indigenous Socio-Political Structure

 Operating Principles
Peace-Building
Pagmugna/pagkab-ot ug
kalinaw Peace
harmony

unity

security
Under-
standing
Operating Principles

D. Kulturanhong Integridad
 Operating Principles

E. Inter-generational Responsibility
Operating Principles

F. Primacy of customary laws

Operating Principles

G. Transparency and clarity

Ang aplikante ipadayag ug sakto ug klaro ang
programa, plano, proyekto ug mga kalihokan nga buot
buhaton.
 Operating Principles

h. Existing Property Rights Regimes

i. Ancestral Domain as a Single Unit

MGA PROSESO
 Mga dokumento lakip sa aplikasyon
• Endorsement of Regulating Agency
• Company Profile
• Project Profile which includes
a. nature and purpose of the project
b. Location with indicative map
c. Abstract of proposed project
d. Duration
e. Preliminary assessment of likely economic, social, cultural and environmental
effects, including potential risks and how these will be addressed;
f. Indicative budget
g. Persons involved in the implementation
• Operational Plan and Activities

National Commission on Indigenous Peoples

 FPIC PRELIMINARY ACTIVITIES
REGULATORY
AGENCY/APPLICANT REGIONAL LEVEL PO/CSC LEVEL

Endorses request for CP RD directs the PO/CSC

with supporting to conduct the Pre-FBI Conduct of Pre-FBI
documents Conference Conference

Conduct of FBI &

Payment of FBI Fee RD issues Work Order Prep of FBI Report

Overlap
NO YES Pre-FPIC
?
Conference

CNO ISSUED BY RD with

concurrence of the
Ethnographic
Commissioner

Payment of FPIC Fee RD issues Work Order Conduct of FPIC

Activities for EILSA Activities for

Projects NESSA Projects
EXTRACTIVE/INTRUSIVE/LARGE SCALE ACTIVITIES
- Exploration of mineral and energy resources
- Programs leading to IP displacement/relocation
- Resettlement programs
- Management of protected and environmentally
critical areas
- Bioprospecting activities
- Activities that would affect their spiritual and religious traditions,
customs and ceremonies
- Industrial land use, establishment of economic zones
- Large-scale tourism/agricultural/forestry
- Establishment of temporary or permanent military facilities; conduct of
military exercises
- Issuance of land tenure instrument or resource use instrument by any
government agencies and related activities
- Similar/analogous activities
 Regular FPIC Process Flowchart (EILSA)
Posting/Serving of
Negotiation
Notices
7 days before 1st CM

MOA Validation and

First Community Signing
Assembly RD notifies
proponent of Non-
Consent
Second Community FPIC Team submits
Assembly report to RD

ADO & LAO review

Decision-Making/ RD Directs RRT to
Consensus Building evaluate the report CEB Deliberation
and issuance of
appropriate
YES RRT evaluates FPIC
certificate
Favorable? report and documents
Assembly NO
RD issues appropriate
IP Leaders/Elders
recommendation to
issue Certificate
MR /Resolution of Denial ADO
 NON-EXTRACTIVE SMALL-SCALE ACTIVITIES

- Activities not covered in Section 19

- Non-extractive exploitation and utilization of land, water

and natural resources as defined under existing laws, rules
and regulations of governing or regulating agencies
- Programs/projects/activities not requiring permits from
government agencies;
- Other small scale quarrying; and
- Other activities similar to the foregoing
 Regular FPIC Process Flowchart (NESSA)
Negotiation
Posting/Serving of
Notices
MOA Signing

First Meeting
RD notifies
FPIC Team submits
proponent of Non-
report to RD
Consent

Consensus Building
RD signs the CP

YES
Favorable? CP concurred by
Ethnographic Comm.
NO
IP Leaders/Elders issue Chairperson confirms CP issued to
Certificate /Resolution of proponent
the CP
Denial
EXCLUDED AREAS

a. Sacred grounds/burial sites

b. Identified international and local heritage sites
c. Critical areas identified or reserved by the
ICCs/IPs for special purposes
d. Areas specifically identified by the ICCs/IPs in
their ADSDPPs;
 Kinsa ang magpatigayon sa proseso?
FBI Team

• CDO – Team Leader

• The FBI Provincial Focal Person
• 1 from CSC
• 2 IP Leaders to be identified by the CSC
 Kinsa ang magpatigayon sa proseso?

The FPIC Team

1. The Provincial Officer, as Team Leader;

2. The Provincial Legal Officer;
3. One (1) Engineer from the Provincial or Regional Office;
4. The head of the FBI Team; and
5. Two (2) IP elders/leaders selected by the community in
the first assembly.
Posting of Bond

• After issuance of resolution of consent, before start of any activity

enumerated under Section 19 (EILSA);

• Proponent secures bond with reputable bonding company with

consent of the NCIP or deposit a cash bond with NCIP;

• Amount shall be agreed by the parties;

• To be stipulated in the MOA;

Wala gi-aksyonan nga aplikasyon

1. Non-appearance in pre-FBI conference

2. Non-appearance in pre-FPIC conference
3. Non-payment of FBI/FPIC fee

Regional
1st meeting 2nd meeting
Director
Suspension of Activities

Return to
Cancellation Show Cause Continuation
Applicant
Non-extendible period of 10 days
Contents of MOA
1. Detailed benefit-sharing provisions in accordance with rules and regulations
[i.e. not less than 1% royalty under mining act];
2. Development projects based on the development priorities of the
community;
3. Monitoring of the implementation MOA to be implemented by NCIP in
partnership with LGUs and CSOs. This undertaking shall be paid for by the
company;
4. Mitigation and resettlement plans for potential risks ;
5. Redress mechanisms;
6. Clause on the non-transferability of the MOA;
7. Clause for renegotiation of the economic provisions;
8. Whether the concerned ICCs/IPs shall require another FPIC to be conducted
in case of merger, reorganization, transfer of rights, acquisition by another
entity, or joint venture;
9. List of responsibilities of the company and the affected community
Contents of MOA
10. Inclusive dates/duration of agreement;
11. Other than what has already been granted by law, the benefits to be
derived by the host ICC/IPs indicating the type of benefits, specific target
beneficiaries as to sector and number, the period covered, and other
pertinent information;
12. Detailed 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 and the Guidelines on the Management of
Royalty Share and Other Benefits promulgated by the Commission En
Banc;
13. Transparency mechanism on transfer and disbursement of funds;
14. Detailed measures to protect IP rights and value systems

National Commission on Indigenous Peoples

Contents of MOA
15. Detailed measures to conserve/protect any affected portion of the ancestral
domain critical for watersheds, mangroves, wildlife sanctuaries, forest cover,
and the like;
16. Responsibilities of the applicant as well as the host IP community;
17. The monitoring and evaluation system of the MOA, to include submission of
reports and creation of monitoring teams;
18. Remedies and/or penalties for non-compliance or violation of the terms and
conditions which includes applicability of customary laws and imposition of
sanction/s;
19. Deposit of cash or surety bond mentioned pursuant to Section 23 hereof;
20. Provision to render assistance in the event of calamities/disasters in the
community;
21. Provision to undertake a new FPIC Process in case of mining activities, after
the exploration stage;
22. Provision on the effects of dormant Certification Precondition;
23. Membership of proponent in organizations requiring ethical standards in a
particular line of activity; and
24. Other requirements provided in this Guidelines.
Inaction of Applicant

• Within 6 months from last FPIC activity = ground for

termination of process

• Non-activity of 1 year from issuance of CP = ground for

cancellation

COMMUNITY VALIDATION
Community Solicited or Initiated
Activities
Projects, programs and activities
undertaken by NCIP by itself or
in cooperation with other
government agencies and LGU
projects
Foreign Funded Project
Undertaken in Cooperation
with NCIP
Exercise of Traditional Resource-
Use Rights
HIGHLIGHTS OF THE
PROVISION
For delivery of basic services.
To be validated to determine if
they coincide with the priority of
the community
Projects to be undertaken by
foreign funding institutions
themselves in cooperation with
NGOs or other institutions shall be
subject to appropriate FPIC
process
NCIP shall validate upon complaint
of any member of the council of
elders/leaders
 What would be determined during Validation Process?

• The ICC, in fact voluntarily solicited or initiated the plan, program, project
or activities to be undertaken;
• The plan, project or activity conforms with the community’s ADSDPP or
in the absence of the ADSDPP, the concerned community considers the
same to form part already of the ADSDPP that they will formulate in the
future;
• The ICC knows the extent of the plan, program, project or activity and its
socio-cultural/environmental impact to the community;
• The parties acknowledge their obligations; or
• The plan, program, project or activity is for the delivery of basic services
or livelihood projects involving community
Proseso sa Pagbalidar

Field
Validation • Transmitted to ERC
• Orders Field for Concurrence
Validation • Report to RD copy furnished ADO
• RD constitutes within 10 days • Transmitted to
Validation Team • Interview Chairperson for
elders/leaders confirmation
and other
Request for community Preparation of
Validation members CP
 “Forging partnership for rights-based development of the Indigenous Peoples”

PART VII

EXERCISE OF PRIORITY RIGHTS

Steps in the Declaration
of EPR by the ICCs/IPs.

#solidarityforIPdevelopment
 Exercise of Priority Rights

Community Assembly
• All members of
community
• With notice to NCIP
• At their own expense
LAO CEB
• Furnish ERC of • ED endorses ADO
executive summary request for inclusion
in agenda of En Banc
Session

Community Resolution
• Majority of members ADO Formal
of community who • Refer to LAO for Acknowledgement and
attended the legal opinion issuance of CP
assembly • Through an En Banc
Resolution

Declaration of EPR
and EPR Plan RRT
• Made by • Validation team
elders/leaders submits report to RO
identified in the • RRT review not more Community
community resolution than 3 days Assembly

Regional Office Validation

• Constitutes validation • Team to assist
team from PO. CSC community to make
or RO declaration to engage
partner
 Minimum requirements of community assembly

1. Every household is entitled to one representative and, at

least, majority of them must be physically present during
the community assembly;
2. Majority of the representatives of the community identified
as responsible to make decisions for the community are
also present;
3. If it involves a CADT area, the representative/s identified in
the claimbook or majority of them must also be present;
4. Public officials, officers or employees who are members of
the community may be allowed to participate in the
community assembly but as ordinary members,
elders/leaders or community representatives, as the case
may be.
 Matters to be taken up in community assembly

1. Review of the population of the concerned ICC/IP

community. Reference may be made to the CADT
application, the ADSDPP formulated, and/or any other
credible source of data/information;
2. Information, Education, Consultation (IEC) on IPRA and
pertinent provisions of its IRR and current NCIP
guidelines;
3. Identification of, and discussion on, the particular natural
resource over which the community desires to exercise
priority right, including its specific location; and
4. Customary processes of arriving at a community
consensus.
Contents of Community Resolution
1. Delineate in detail the specific location and area where the
subject natural resource is or may be found;
2. Identify the specific natural resource;
3. Describe the capability and/or capacity of the community
to undertake the activity they seek to engage in as
consequence of the EPR; and
4. List the names of community elders/leaders who are
authorized to make the declaration of EPR.
 Contents of EPR Plan
1. General information about the Ancestral Domain and the ICCs/IPs of
the area, including indigenous land use plan, if existing and available;
2. Purpose of the declaration;
3. Natural resource for development, harvesting, extraction or
exploitation;
4. Specific Location and area of the proposed site/s accompanied by
maps, 3D maps, sketches and/or other material reference
monuments as annexes;
5. Projects, programs, activities or undertakings to be pursued to realize
the purpose of the EPR;
6. Scope and duration of operational plan/s for every activity;
7. Capability of the community to undertake the same or to engage a
qualified partner;
 Contents of EPR Plan
8. Conformity with the existing ADSDPP and/or the Environmental
Conservation and Protection Program of the concerned ICCs/IPs as
provided for under the IRR of IPRA;
9. Existence of a duly organized IPO registered and recognized by NCIP;
10. Recognition and Observance of IP Governance/Decision-making processes;
11. Existence and feasibility of EPR Plan & ECPP;
12. In the absence of a provision in an existing ADSDPP, or non-existence of an
ADSDPP, a statement that it shall be so included in the existing ADSDPP or in
the one that shall be subsequently formulated.
13. How income and/or benefits will be managed, shared, used and accounted
for; and
14. Name and personal circumstances of the authorized elders/leaders who
made the declaration and their signatures or thumb-marks.
 Community assembly when partner is engaged

1. Personality of the proposed partner who shall be a non-member of the community or a

juridical person whose incorporators are non-members or a mixture of members and
non-members, validly organized and existing under Philippine laws;
2. Financial and technical capability, as well as track record of the proposed partner;
3. Proposed terms and conditions of the proposed partnership which must include, among
others: (a) the duties and obligations of the parties; (b) the determination, sharing, and
release of benefits; the period of partnership; prohibited acts; and Conflict/Dispute
resolution;
4. Sharing of expert opinions by persons invited by the community;
5. Open Forum;
6. Consensus-building period which must include a reasonable time frame of activities for
such, the manner by which it will be done ,and the date when the decision of the
community will be made known to the Validating Team, by the authorized elders; and
7. Other matters that the community may deem necessary.
Management of Royalties
PART VIII
and Similar Benefits
 Section Topic Important Points
Sec. 58 Nature of Royalties * shall not be treated as economic benefits but social
justice measures

Sec. 59 Person Authorized to * Only the duly organized, NCIP registered IPO of the
Manage concerned ICCs/IPs shall be authorized to receive &
manage the royalties.

Sec. 60 Release of Royalty Fees * The release of monetary benefits must be directly to
the account of the IPO or Trustee Bank with
concurrence of EC & Chairperson

Sec. 61 CRDP * The ICC/IP must formulate a development plan for the
management and use of the royalty
* ADSDPP shall be considered in the formulation of the
CRDP
* CRDP subject to confirmation to confirmation by the
CEB after verification & validation of field officer
 Section Topic Important Points

Sec. 62 Use of Royalties • Emergency concerns; short, medium, long-term

investments; livelihood & social dev’t. projects, not less
than 30% of each & every release; education & training,
capitalization for cooperative dev’t; credit facility;
salaries or wages; mutual assistance

Sec. 63 Transparency Mechanism * The IPO shall prepare periodic financial reports and
annual financial statements duly audited and furnish
copies to NCIP
* To be reported to the general membership

Sec. 64 Monitoring and Visitorial * NCIP may exercise its visitorial power
Powers * NCIP may direct financial and management audits of IPO
managing royalties and other benefits
 Royalties
 Mga elemento nga mga tan-awon ug balansehon sa pagnegosyar ug
royalties:
1. unsa ang kasamtangan nga kahimtang sa katilingbang lumad diha sa
parte sa AD nga maapektohan sa proyekto?
(socio-cultural and socio-economic);

2. unsa ang kasamtangan nga kahimtang sa ancestral domain?

(kapasidad sa AD – economic and environmental status)

3. unsa kadako ang yuta sa AD nga maapektohan ug pila ka miyembro sa

komunidad ang maapektohan?

4. unsa ang epekto sa proyekto human sa termino sa kontrata?

5. unsa ang kaugmaon sa mga sumusunod?

 Royalties
 Dili angay tan-awon nga ekonomikanhong benepisyo apan
usa sa pamaagi sa paghatag ug hustisya sa komunidad;

 Kini dili para sa pipila ka tao kundi para sa kalamboan sa sa

komunidad nga maapektohan sa proyekto ug sa ancestral
domain; IPRA-IRR nag-ingon 30% sa benepisyo na makuha
igahin sa “community development projects”.

 Matagamtaman lang sa panahon sa proyekto nga naga-

operate ang kompanya, human sa kontrata wala nay
royalties;

 Ang balaod nag-ingon “atleast 1%”;

Prohibited Acts and Remedies

• Aplikante

• NCIP

• Miyembro sa Komunidad ug Elder/Leader

• NGOs, CSAs, Gas, LGUs ug uban pang grupo

Thank you