A POLICY BRIEF FREE AND PRIOR INFORMED CONSENT ASSESSMENT APRIL 2013

Assessing Free and Prior Informed Consent

(FPIC) implementation in the Philippines 1

Climate-relevant Modernization of Forest Policy and Piloting of REDD in the Philippines

Context
The 1987 Philippine Constitution guarantees is conducted by the Ancestral Domain Office of
the recognition of the rights of indigenous the area concerned: Provided, That no certificate
cultural communities over their ancestral shall be issued by the NCIP without the free
domains including deciding priorities for their and prior informed and written consent of the
own development. Republic Act No. 8371 or ICCs/IPs concerned: Provided, further, That no
the Indigenous Peoples Rights Act (IPRA) of department, government agency or government-
1997 was legislated to make these constitutional owned or -controlled corporation may issue new
guarantees operational. The law recognizes the concession, license, lease, or production sharing
time immemorial possession of the Indigenous agreement while there is pending application
Peoples over their ancestral domain, which gave CADT: Provided, finally, That the ICCs/IPs shall
rise to the presumption of private ownership of have the right to stop or suspend, in accordance
these lands, including forests. with this Act, any project that has not satisfied
the requirement of this consultation process.
IPRA also recognizes the right of Indigenous (Emphasis supplied)
Peoples to self-determination, of which Free
and Prior Informed Consent (FPIC) is an The IPRA law created the National
expression. The FPIC requirement under Commission on Indigenous Peoples
Section 59 of IPRA states: (NCIP), an agency with frontline services for
the Indigenous Peoples, and it is attached to
[A]ll department and other governmental agencies the Office of the President. The NCIP issues
shall henceforth be strictly enjoined from issuing, guidelines for the implementation of IPRA,
renewing, or granting any concession, license some of which are the NCIP Administrative
or lease, or entering into any production- Orders laying down the FPIC Guidelines of
sharing agreement, without prior certification 2002 and 2006, the implementation of which
from the NCIP that the area affected does not is the subject of this assessment.
overlap with any ancestral domain. Such certificate
shall only be issued after a field-based investigation

1 This assessment was part of a series of policy studies undertaken in the Philippines under the project “Climate-
relevant Modernization of Forest Policy and Piloting of REDD in the Philippines” funded under the International
Climate Initiative of the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety
(BMU) and implemented jointly by the DENR-FMB and the German-Development Cooperation-Deutsche Gesellschaft
für Internationale Zusammenarbeit (GIZ) GmbH. The FPIC Study has been implemented by a team of researchers
in close cooperation with the National Commission on Indigenous Peoples (NCIP) under GIZ contract with support
from the Non-Timber Forest Products-Exchange Programme (NTFP-EP) through the ASEAN Social Forestry Network
supported by the Swiss Agency for Development and Cooperation (SDC). Case studies in the Caraga Region had
been supported by the GIZ COSERAM Project funded by the German Federal Ministry for Economic Cooperation and
Development (BMZ).

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 A POLICY BRIEF FREE AND PRIOR INFORMED CONSENT ASSESSMENT APRIL 2013

Figure 1. Classification of Certification Precondition issued by National Commission on Indigenous Peoples

based on FPIC given by IP/ICCs
Source: NCIP, December 2010

As of 31 December 2010, there are 309 areas FPIC process remains the most concrete and
with issued compliance certificates by the basic safeguard for realizing IP rights in the
Commission en banc of the NCIP, on the basis context of REDD-Plus implementation. It is
of completed FPIC processes where consent also a platform for the IPs to enforce their
was given by the communities. The latest data right to the equitable and fair sharing of
provided by the Ancestral Domain Office of benefits from the utilization of their natural
the NCIP show that Certification Precondition resources, captured in a Memorandum of
covers a milieu of activities and may be Agreement (MOA) that is mutually agreed
disaggregated as shown in Figure 1. upon by the parties, the IP and the project
proponent.
However, there has been no monitoring and
evaluation of the FPIC processes since the The FPIC Guidelines lay down a uniform
first Certification Preconditions were issued and mandatory mechanism, but the actual
by the NCIP in 2004 despite the numerous decision-making process varies depending on
issues and complaints raised with NCIP on the customary law of the concerned ICCs/
the FPIC process. With the implementation IPs, i.e. whether the community decision
of the 2006 FPIC Guidelines, there has been a is to be given by the elders/leaders or by the
tremendous 63% increase in the percentage of community members involved through
FPIC processes. household representation or otherwise. In
practice, the process may include a ritual that
With most potential REDD-Plus sites could be in the form of an offering, dance,
located in ancestral domains, the iterative prayer or combination of all these forms.

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 A POLICY BRIEF FREE AND PRIOR INFORMED CONSENT ASSESSMENT APRIL 2013

Whatever the decision-making process is for

the community, the FPIC Guidelines stresses
the primacy of cultural integrity while ensuring
that the processes are empowering the IPs by The main objective of the study is to assess
requiring that the process is presented by the the implementation of the FPIC Guidelines
recognized elders/leaders to the community in randomly selected IP communities in
and affirmed by the latter. Despite the the Philippines using both quantitative and
customary decision-making processes that qualitative research methodology; the latter
may be executed, the guidelines require that particularly used the case study approach. The
consensus-building shall be observed at all primary unit of analysis of the case study is the
times. A separate process for determining and FPIC coverage area within the ancestral domain,
validating the legitimate or recognized elders/ defined by the FPIC Guidelines as the direct
leaders is also provided. impact area and/or area that had undergone
the process of FPIC. The case study covered
10% of the issued Certification Precondition
What is FPIC? by 31 December 2010, and randomly selected
and “special sites” reported to have unique
FPIC is a mechanism and a process wherein
Indigenous Peoples (IPs) undertake their
experiences in FPIC implementation. A total
own/independent collective decision on of 34 case studies, involving around 20 ethnic
matters that affect them, as an exercise of groups, were analyzed for this report, with
their right to their land, territories and projects classified in Table 1.
resources; their right to self-determination;
and cultural integrity. Under the IPRA, Free
and Prior Informed Consent (FPIC) Table 1. Projects of the case studies
is defined as:
Project type Number of cases Percentage
“The consensus of all members of the ICC Mining related 17 50%
[Indigenous Cultural Communities]/IPs which
is determined in accordance with their respective Energy related 5 14.7%
customary laws and practices that is free Intergrated 5 14.7%
from any external manipulation, interference Forest
and coercion and obtained after fully Management
disclosing the intent and scope of the Agreement
plan/program/project/activity, in a language
and process understandable to the community. Conservation/ 2 5.9%
The FPIC is given by the concerned ICCs/IPs reforestation
upon the signing of the Memorandum Others 2 14.7%
of Agreement (MOA) containing the
conditions/requirements, benefits as well as
penalties of agreeing parties as basis for the
consent.” Except for the two cases of conservation or
reforestation that account for only 5.9% of
A proof that a project proponent has complied
with the FPIC process is the Certification
the total projects evaluated, the rest are either
Precondition. This is a certification issued extractive and/or intrusive into the properties
by the NCIP, either by the Commission en banc of the Indigenous Peoples.
or by the Regional Director, depending on the
classification of the project, attesting that
the applicant has complied with the requirements
of the FPIC Guidelines.

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 A POLICY BRIEF FREE AND PRIOR INFORMED CONSENT ASSESSMENT APRIL 2013

FPIC proper is conducted outside the

community, limiting community participation
and is oftentimes a premeditated design to
The assessment involved two processes: the exclude those who are perceived to be opposed
technical/procedural compliance with the FPIC to the project. Other noted violations are on:
Guidelines and the substantial compliance, questionable selection and validation of leaders;
which refers to the degree of observance of the management of funds by applicants; transfer of
basic tenets of the Free and Prior Informed Certification Precondition without FPIC; and
Consent. In effect, substantial compliance is absence of consensus-building or the freedom
an evaluation to indicate whether the consent period is not followed. In addition, the number
of the communities affected was not vitiated, of votes is manipulated to give a semblance of
coerced or disregarded. majority vote, a mechanism combining the
votes of two different communities in order
In the procedural compliance, a significant to get a cumulative consenting vote, clustering
plurality of the studies does not show violations the community or phasing the consent of
on the pre-FPIC activities; however, substantial communities.
incidents of violations were reported during
the actual conduct of the FPIC (41.2%), more MOA signing and post-FPIC activities
so during the MOA signing and post-FPIC Fifty percent of the case studies reported
activities (50%). In the last two phases, the list violations during this stage. This is alarming
of violations reveals a manipulative scheme on considering that the signing of the MOA
the part of the proponents to get the “consent” is the operative act that binds the IPs to the
of indigenous communities. stipulations contained in the agreement. Just
as importantly, the MOA is a proof that the
Findings in the different stages of FPIC project proponent can now start the project. The
implementation are briefly described as follows. reported violations for this stage centered on:
signing conducted outside the NCIP provincial
Conduct of Field-Based Investigation office; lack of qualification and/or validation
There are no reported violations in 44% of of signatories; lack of knowledge of what was
the case studies, whereas reported violations being signed/forgery; absence of NCIP officials
are on the composition of the Field-Based during signing; the MOA was not presented to
Investigation, which was limited to a number the community before signing; and the MOA
of barangays rather than all affected barangays does not reflect the true intention of parties.
and an incident of no actual visits in the Serious allegations of coercion and kidnap were
affected area . documented in one MOA signing that took
place in another province reachable only by big
Pre-FPIC boats.
Only two case studies reported some violations,
but it is worth noting, however, that 11 The assessment illustrates that with regard
case studies do not have any data where an to non-implementation of agreed upon
evaluation can be arrived at. or promised benefits, an alarming 80% of
the violators were allegedly guilty of this.
FPIC proper Admittedly, the FPIC Guidelines is bereft of any
More than half of the case studies (61.5%) strong regulations regarding the monitoring of
reported violations of the guidelines. The most the MOA implementation.
frequently violated rule is on venue.

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 A POLICY BRIEF FREE AND PRIOR INFORMED CONSENT ASSESSMENT APRIL 2013

“FPIC implementation” is used to broadly refer to compliance with

the FPIC Guidelines, which cover, among other things, the conduct
of the Field-Based Investigation, pre-FPIC activities other than
the Field-Based Investigation, FPIC mandatory activities,
and post-FPIC activities including the signing and
implementation of the MOA.

On the substantial implementation of the An interesting finding of this study is that

principles and “spirit” of Free and Prior although indigenous notions of consent do
Informed Consent, 41.2% of the case reports exist, and that there are culture-based and
claimed that the consent of the communities site-specific customary practices of giving
were freely given. However, 35.4% reported that consent, the modern and liberal concept of
the consent was given by IPs without sufficient “majority rule” (50+1) had become widely
information to arrive at a rational decision. An utilized by IP communities. This may be
alarming 23.6% or eight case reports stated that seen as an effective imposition by the State
consent was not freely given. This involuntary and other modernizing institutions, but it
consent is said to be mainly because of the may also be explained at the same time as an
economic status of the IPs; however, instances increasing accommodation by the Indigenous
of direct bribery, coercion, intimidation and Peoples themselves of non-indigenous or
manipulation likewise appeared as among the modern practices. An increasing number of IP
other reasons for not having a free consent. communities and peoples may in fact choose
to move from customary to state institutions,
There are nine case reports that revealed that or both, single-mindedly or simultaneously,
proponents already started their operations depending on the circumstances and perceived
before seeking the consent of the communities, immediate benefits that they could derive from
and there are cases where no FPIC was these institutions.
conducted for two reasons: either the project
was community initiated or there are no IPs Overall, the assessment shows that in
found in the area. The community-initiated most cases, there had been considerable
cases were found to be very susceptible to procedural and substantial violations of
manipulations by the applicants who wish to the FPIC Guidelines. The assessment could
circumvent the rules. This has to be seriously not state a more than 50% full and faithful
looked into. implementation of the guidelines. For the
most part, indigenous communities have
The consent of the community was equated been short-changed, if not deceived by many
with the “majority’s preference”, which is FPIC applicants.
expressed in a variety of ways including (a)
the use of “sweet-smelling” jackfruit leaves
to indicate a vote of approval or guava leaves
to show rejection; (b) secret balloting; and
(c) raising of hands. Note here that in some
instances, community consent actually refers
to the decision of a very small group of male
leaders.

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 A POLICY BRIEF FREE AND PRIOR INFORMED CONSENT ASSESSMENT APRIL 2013

Recommendations for NCIP

• NCIP staff must fully understand the FPIC • Strengthen the role of the Regional Review
principles and process; Team especially in ensuring that the FPIC
process was implemented accordingly and
• Assess its capacity to perform its mandate; the MOA reflects the sentiments of the
community;
• The NCIP should be beefed up with technical
expertise; • Complete and make accessible to the public
a database consisting of a master list of the
• The NCIP should conduct a thorough ancestral domain and all relevant project
background investigation about the documents including Field-Based Investigation
applicants, including a projected income reports, Certification Precondition issued and
from the projects, and make this information monitoring; and
available to the IPs;
• Conduct regular local inter-agency meetings
• The NCIP should conduct a social and for proper coordination.
Environmental Impact Assessment of projects,
and make the information available to the
community;

• The NCIP must be constantly reminded that

its mandate is to protect the rights of IPs—
it has a preferential bias for IP rights (NCIP
should not work on behalf of companies);

FPIC financing

a. NCIP should be provided with sufficient d. There should be different requirements and
funding to insulate it from undue influence expenses for projects according to coverage/
from vested interests. scale. Expenses should be commensurate to
the project size.
b. Contingency funds should be added in the
work and financial plans for the Field-Based e. There should be a clear provision on what
Investigation and FPIC processes. to do with unused FPIC funds. A time limit
should be set for the applicants to withdraw
c. The Field-Based Investigation applicant should unused funds.
directly disburse expenses without depositing it
with the NCIP to avoid delays and accusations f. Expenses incurred for the FPIC should be
of corruption, among others. audited, and the financial report should be
presented to the community.

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Recommendations for policy makers

Based on the foregoing findings, this study puts forward the following recommendations toward
improved FPIC Guidelines:

1. The FPIC process should include not 11. Provision for stakeholder engagement for
only the directly affected areas and IP the NCIP on monitoring FPIC contracts
communities but also those areas that will with the view that it is not only the
be affected by the project (e.g. upstream economic benefits that need to be assessed
and downstream communities, IPs and but also the cultural and environmental
non-IPs, migrant IPs). impacts of development-oriented projects
2. The ancestral domain should be the and investments into the ancestral domain.
primary unit for consideration in FPIC, 12. Establish/clarify and disseminate
not the political boundaries. information about grievance mechanisms
3. The Certificate of Compliance should within the FPIC processes and how these
not be transferrable to other companies processes can be availed by the community.
without the FPIC of the Indigenous The available grievance mechanisms should
Peoples concerned. be part of the topics to be discussed during
4. The IP communities should be allowed the meetings with the community.
sufficient time to collectively deliberate 13. Improve guidelines on execution
on the application and give their consent. and monitoring of Memorandum of
They should not be tied to very tight time Agreements (MOA) by providing the
lines imposed by the applicants and NCIP. following rules:
5. FPIC should be implemented in each phase • The deliberations on the content of the
of the project (in mining, FPIC should be MOA should involve IPs as widely as
done before the conduct of due diligence, possible;
exploration, extraction, etc.). • The draft MOA should be brought to
6. Full disclosure of information to the the community, explained to the IPs and
community should be done in a language translated in their indigenous language
and manner understandable to them. before it is finalized and signed;
7. Conduct of Environment Impact • The signing of the MOA should be done
Statement/Assessment before the conduct within the community;
of the FPIC should take place as it will be • The implementation of the MOA
part of the information that the community should be closely monitored by the
will take into consideration when they NCIP and/or a multi-stakeholder body
make their decision. with guidelines on monitoring put in
8. Build the capacity of the National place;
Commission on Indigenous Peoples • Clear provision on royalties and benefit
(NCIP) to perform its mandate. sharing schemes in order that IPs are not
9. There should only be one Certification short-changed; and
Precondition issued for one application. • The MOA should explicitly include a
10. Provision for specific and adequate provision for a grievance mechanism—a
operational guideline for NCIP staff, check against non-implementation of
IPs or LGUs, in cases of violation of the the provisions of the MOA.
substantial and technical guidelines of the
FPIC process.

A number of these recommendations were already addressed when the NCIP issued the 2012 FPIC
Guidelines, which became effective on 16 May 2012. The field researchers involved in this study have
also shared practical lessons to inform the formulation of the said new guidelines.
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For more information

Dr. Bernd-Markus Liss

Principal Advisor
Deutsche Gesellschaft für Internationale
Zusammenarbeit (GIZ) GmBH

Department of Environment and Natural

Resources, Climate Change Office
2nd Floor, FASPO Building
Visayas Avenue, Quezon City 1101
Philippines

Phone +63 2 929 6626 local 207

Fax +63 2 892 3374
Email [email protected]

Department of Environment
and Natural Resources