June 6, 2023

For four years, I sat behind the table in the National Commission on Indigenous Peoples-Cordillera, dissecting papers on the Free Prior and Informed Consent (FPIC) process.
As the regional FPIC focal person, I am barred from participating in the conduct of the FPIC. Much as I want to join in the conduct of FPIC, I could not, in order to remain impartial in my reviews and evaluation of the process.
The FPIC is more than a procedure. It is a substantive right vested to the indigenous peoples that can only be attained if it is implemented and observed with utmost diligence.
FPIC is a powerful weapon under Republic Act 8371 or the Indigenous Peoples Rights Act. It recognizes the inherent rights of the IPs to decide what and how to implement development within their ancestral domains (AD).
To ensure smooth and truthful recognition of FPIC, the NCIP formulated guidelines for the process through Administrative Order 3 s. 2012 (AO 3 s. 2012).
I am biased in all of my reviews, but my prejudice is not related to whether I am for or against the proposed project. My views towards mining, logging, dams, and other projects are immaterial and do not affect my work. My bias is towards the strict execution of the FPIC guidelines.
The FPIC guidelines are not perfect. The current FPIC rule was a product of series of modifications, which sprouted from mistakes brought to the attention of the NCIP by different cause-oriented groups and the academe.
The hatred towards the FPIC guidelines now is nothing compared to its predecessors.
NCIP AO 3 s. 2012 was not wholly immune to mistakes and errors despite the revisions made. It failed to address several issues. One that surfaced in the comments of some cause-oriented groups is the reorganization or re-structuring of the NCIP.
The implementation of the FPIC guidelines is affected by the restrictions on the views on the IPs’ situations nationwide. Despite the differences in customs and traditions, it forces them to fit one pair of shoes sewn by the NCIP. Though the intention for uniformity in the FPIC process is quite laudable and anchored on good faith, it promotes the non-recognition of the uniqueness and peculiarities of IPs in their respective ancestral domains.
Because of this, the NCIP should be prudent in promoting a more community-centered FPIC starting with the community consensus building or the decision-making process in the conduct of the process. In the absence of NCIP-documented and validated indigenous political structure (IPS), the community preference is to determine their decision-making process and have the same affirmed in a community assembly. The meeting should be announced.
Through the community assembly, discourses between and among the IPs are expected. It will be a joy to see IPs embracing development projects through customary discourse with their fellow IPs. All the more, it will be a momentous achievement, not only for the IPs but for NCIP, if they reconcile this clash of views using their customs.
The thought is ideal and some might say unachievable considering that not all IPs share the same views towards proposed projects that are mostly intrusive by nature. Contrasting views create division, leading the IPs to shift to a foreign form of decision-making like voting in which the majority prevails. The guidelines allow such means only if the IPs themselves, through a community assembly acting as a single entity, decide to adopt a different way of determining whether to consent to or reject a project.
In my reviews, a lot of IP communities conformed to voting. Perhaps some IP communities nowadays are open to integrating foreign concepts in their decision-making. Thus, it is only prudent to go through the voluminous FPIC activity reports, transcripts, attendance sheets, memorandums of agreement, and other related documents. This is to ascertain the affected communities’ decision was indeed the result of their community assemblies. Without any substantial reason and indication in the papers that the IP communities knowingly severed from their customary and traditional decision-making, it will be interpreted as void consent.
Even with a documented IPS affirming the decision-making lies with the elders, the same still merits scrutiny and should not be presumed regular. The guidelines do not say that community elders decide via voting and that majority will prevail.
Our history dictates that indigenous elders, as bearers of great wisdom, are consciously grounded and immersed with their respective communities. They dispose of their decisions based on what is best, not only for their ancestral domains but also for other adjacent territories. Their decision-making is deeply attached to their community. They continuously consult with their constituents before settling into a decision that would affect their domain.
I have yet to see a decision-making process that emanated primarily from the IPs’ 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, was done by a select few or a group of individuals. The ancestral domain holders delegate their authority through community resolutions. (ROCKY NGALOB)