THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997, CERTIFICATION PRECONDITION AND
FREE AND PRIOR INFORMED CONSENT (FPIC) PROCESS
This month of October is known as the Indigenous People’s Month. Almost twenty-three (23) years ago, on 29 October 1997 to be exact, Republic Act No. 8371, otherwise known as the Indigenous People’s Rights Act of 1997 (“IPRA Law”), was enacted and signed into law by then President, Hon. Fidel V. Ramos. The law is the collective embodiment of the dreams and aspirations of the Indigenous Cultural Communities/Indigenous Peoples (“ICCs/IPs”) in the country. IPRA Law also led to the creation of the National Commission on Indigenous Peoples which succeeded the former bodies overseeing the rights and welfare of the ICCs/IPs, the Office of the Northern Cultural Communities and Office of the Southern Cultural Communities.
The IPRA Law under the public policy parlance is a political affirmative action. The law seeks to tilt the balance in favor of ICCs/IPs to compensate them from the historical injustice committed against them. Injustice involves killings and displacement from their ancestral domains/lands. Aside from ensuring equal treatment and opportunity and participation in local policy-making bodies, the most important feature of IPRA Law is the recognition of a traditional and communal concept of ownership over their ancestral domains and lands. Section 2 (b) of the IPRA Law states that “the State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic, social and cultural well-being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.”
Section 5 of the IPRA Law, on the indigenous concept of ownership sustains the view that “ancestral domains and all resources found therein shall serve as the material bases of their cultural integrity and holds that ancestral domains are the ICC’s/IP’s private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed.” This was echoed by the great Macli-ing Dulag, a Kalinga Chieftain who was slain because of his opposition to the Chico Dam Project. When asked where his proof of ownership and title is, he answered, “Such arrogance to speak of owning the land when we instead are owned by it. How can you own that will outlive you? Only the race owns the land because only the race lives forever.”
As owner of ancestral domains/lands, the ICCs/IPs are given the power to grant or withhold their consent to any government or private project in their areas. Section 59 of IPRA Law governs the requirement of a Certification Precondition before issuing, renewing, or granting any concession, license, or lease, or entering into any production-sharing agreement. This Certification Precondition is issued by the NCIP only after the applicant has complied with the so-called Free and Prior Informed Consent (FPIC) process. Section 3 (g) of IPRA Law defines FPIC as 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 the activity, in the language and process understandable to the community.”
FPIC process is very tedious since it involves the following stages: (a) Field-Based Investigation; (b) Pre-FPIC Activities and Conference; (c) Consultative Assembly; (d) Consensus Building and Freedom Period; (e) Decision Meeting; (f) FPIC Memorandum of Agreement Negotiations; (g) Community Validation; (h) Signing of the FPIC MOA; (i) Deliberations by the NCIP En Banc. One if not the longest FPIC process in the country was undertaken by Sagittarius Mines, Inc. for its Tampakan Copper-Gold Project which took ten (10) years before the Certification Precondition was issued.
There are ICCs/IPs in Bohol collectively known as the Eskayas. They reside in the towns of Guindulman, Duero and Candijay. This writer was fortunate enough to visit our brothers and sisters Eskayas in 2010. I am not sure of the status of their application for a Certificate of Ancestral Domain Title (CADT) but the CADT Titling process under the IPRA Law is merely a formal recognition of their ownership over their ancestral domains/lands. The law presumes that they have possessed their ancestral domains/lands since time immemorial and these have never become part of public domain. This is the so-called Native Title as held by Justice Oliver Wendell Holmes, Jr. of the Unites States Supreme Court in the landmark case of Cariňo vs. Insular Government, 212 U.S. 449 (23 February 1909).