December 6, 2022

Did you know that there is a law ratified during the Duterte administration that drowned the substantial right of indigenous peoples to Free Prior and Information Consent (FPIC)?
Republic Act 11234 or the Electronic Virtual One Stop Shop (Evoss) took effect in 2019. It was intended to fast-track processing of permits and mainstream government policies in issuing the same through electronic system. One process it ought to fast-track or cut-short is the FPIC process by the National Commission on Indigenous Peoples.
The law prescribed a time-bound processing of the FPIC and the issuance of Certificate on Non-Overlap. This was further given force by the adoption of the NCIP Commission en banc Resolution 08-052-2020. As a result, NCIP is now bound to conduct the FPIC guidelines, together with the affected IPs inside the ancestral domain (AD) and project proponent, within 105 calendar days. Take note that the 105 days are “calendar days” and not “working days”.
The FPIC, as a substantial right intended to level the playing field for IPs and as an expression of social justice, was reduced into a mere time-bound procedural compliance under the Evoss Law. IPs are now constrained to dispose their consent or rejection to a certain project in 105 days.
This imposition undermines the customary decision making process of IPs. IPs dispose their decisions on proposed projects that would adversely affect their AD, a customary decision making that has no periods or deadlines.
IPs, particularly in the Cordillera, before rendering their decisions, go through their experiences to guide them in their resolutions. In doing such, IP elders/leaders, converge as a single unit to discuss the pros and cons of projects. They convene series of dialogues and discourses with their respective indigenous cultural communities. This is because IP elders/leaders’ voice is an echo of the whims of the IP community. Given the luxury of time, the IP elders/leaders will squeeze all the issues and concerns coming from their constituents. All will be accorded and the same will be recognized for possible resolution, if any. Simply put, IP elders/leaders cannot decide without reviewing their repository of oral history in dealing with intrusive and extractive projects parallel to the concurrence of the IP community. This long, tedious process is the IPs’ customary way of disposing decision and there is no substitution for such procedure. Neither can the same can be given a period.
Apart from the 105 days, the Evoss Law limited the IPs’ rights to reject a certain project. The law expressly states, “a Resolution of Non-Consent shall be based solely and exclusively on the violation of the right to ownership.”
This practically narrowed the rights of IPs in exercising their right of rejection. With Evoss, IPs who reject a project must prove the rejection is grounded solely and exclusively on a violation of their right of ownership. Therefore, non-meeting of the minds during the negotiations due to a scant offer of royalty shares will no longer be a ground for rejection. Also, due to the Evoss law, IPs can no longer reject a company that has a bad record or corrupt reputation. Deceit, like non full-disclosure by the company of information relative to the project, will no longer be a ground for rejection. Coercions, intimidation, and bribery can no longer be cited as reasons for rejection.
A more dangerous provision of Evoss is the clause on “deem approval” of the Certification of Precondition (CP). Non-compliance to the 105 days will mean automatic approval of the CP thus, consummating the FPIC process. In effect, CPs may be approved and the FPIC process may be completed because of plain technicalities or due to simple negligence by the NCIP. The FPIC and the CP will no longer be grounded on intelligent consent but on mere technicalities. This is a far-cry from what the FPIC or CP has intended for the IPs.
Given the “deem approval” due to technicalities and not because of intelligent consent, IPs will be forced to enter into a memorandum of agreement within 30 days with project proponents. Not only will they be forced to enter into contract, they will likewise be constrained to embrace a template agreement within the measly period of 30 calendar days. Remember that the subject of the supposed contract agreement is the IPs’ resources.
This is coercion. The Evoss practically legalized coercion in the conduct of the FPIC process.
It is just one of many policies enforced by the Duterte administration that adversely affects the IPs.
The same administration also operationalized Executive Order 30 s. 2018 entitled, “Creating the Energy Investment Coordinating Council (EICC) in Order to Streamline the Regulatory Procedures Affecting Energy Project”. The EICC was given the power and discretion to issue Certificates of Energy Projects of National Significance (CEPNS). Attached to the CEPNS, if granted to a proponent, is the privilege of “presumption of prior approvals” of permits which may include CPs.
This is now the face of FPIC: a checklist. There were countless attempts to reduce the FPIC in the past administrations. It is only the Duterte administration that enacted a law suppressing the FPIC. Perhaps, this is the effect when your administration is surrounded by advisers with little knowledge about the IPs and their concerns and just simply reared to follow orders and utter “Yes sir”.
Even before the passage of Evoss, politicians resorted to misinformation or to threatening the IPs on the State’s inherent power to eminent domain as a means to suppress the FPIC process. Apparently, politicians are using eminent domain to force IPs into surrendering their consent to a project. This is yet another form of coercion.
For now, it is certain there are individuals or groups that will go to lengths to water down the IPs’ rights to FPIC. It is also glaring that the priorities of the administration are not the well-being of IPs, but more on streamlining processes to exploit resources found within the IP’s AD. Current policies are tilted heavily on corporations and investors rather than uplifting the IPs’ welfare and recognizing their right to self-determination. (ROCKY NGALOB)

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