QuestionsQuestions (NCIP ADMINISTRATIVE ORDER NO. 3, S. OF 2002, FEBRUARY 19, 2002)
It provides revised procedures and standards for (1) securing Free and Prior Informed Consent (FPIC) of ICCs/IPs in ancestral domains for certain government/regulatory applications, and (2) the issuance of the NCIP Certificate Precondition, including requirements, field-based investigation, fees, MOA contents, roles of parties, prohibited acts, sanctions, and dispute/complaint mechanisms under R.A. 8371.
It is the certification issued by the NCIP stating that the site covered by an application (lease, license, permit, agreement, concession, or production-sharing) does not overlap with any ancestral domain; or if it is within an ancestral domain, that the required FPIC has been properly obtained under the guidelines.
FPIC is the consensus of all members of an ICC/IP community determined through customary laws and practices, free from external manipulation, interference, or coercion, and obtained after fully disclosing the intent and scope of the program/project/activity in a language and process understandable to the community. It is given upon signing a Memorandum of Agreement containing conditions/requirements, benefits, and penalties.
The proponent must directly file the application with the concerned government agency for compliance with its regulatory requirements. The agency then endorses the application to NCIP for certification precondition. Requests coming directly from proponents to NCIP are not acted upon.
FBI is an on-site inspection/investigation to determine the presence or absence of ICCs/IPs and/or ancestral domains in the area covered by the application. The guidelines assume the site falls within/contains/overlaps an ancestral domain until proven otherwise.
Within five (5) working days from receipt of the endorsement, the NCIP Chairman directs formation of the FBI team and work order. The team conducts secondary source assessment before actual inspection, within fifteen (15) working days from Work Order receipt. Within fifteen (15) working days after the FBI, it prepares a report/recommendation. Within ten (10) working days, the Regional Director forwards it to ADO. ADO then issues the certification precondition within seven (7) working days from receipt.
It must include: dates/locations visited; names/designations of FBI team; purpose; specific places visited; persons interviewed; observations/comments; estimated ICC/IP population in affected overlap area; preliminary documentation of authentic indigenous consensus-building/decision-making processes and identification of authentic leaders; assessment; and if FPIC is requisite, estimated FPIC cost to be deposited.
The applicant/proponent pays a fixed Field-based Investigation Fee of PHP 5,000.00. If FPIC is needed, the proponent deposits an FPIC Fee estimated by the NCIP Regional Office based on gathered data, considering transportation, food allowance, and other necessary expenses for the FPIC proceedings relative to days and number of participants. Unspent FPIC fee must be returned; improper estimation/collection may be illegal exaction.
At least: (1) Notices—posting and personal service to elders/leaders at least five (5) days before a preliminary consultative meeting; (2) Validation of the list of elders/leaders via random listing and customary qualification; (3) Preliminary consultative meeting with elders/leaders, proponent, NCIP, collaborating NGOs/civil society, where the operation plan and impacts are presented in comprehensible form; (4) Consensus building—elders/leaders consult within fifteen (15) days using customary processes, while participants except the NCIP representative are not allowed to stay in the community; and (5) Community assembly—household heads vote/decide, with documented results and terms, translated into an MOA signed by parties and NCIP as third party.
Only the NCIP representative may stay in the community; other participants from the preliminary consultative meetings are not allowed to stay during that period.
NCIP conducts voting by raising of hands to count those who vote for or against. Leaders/elders must explain the vote, and if consent is given, the terms/conditions are documented and translated into an MOA to be signed by both parties with NCIP (Chairperson) as third party.
If the FBI report requires FPIC, NCIP notifies the applicant in writing to submit the project operation plan within fifteen (15) working days. The notice also informs the applicant that they may proceed with the conduct of the FPIC.
They must state specific reasons for non-consent in writing, signed/thumb-marked by authorized leaders/elders on every page, then submitted to the Regional Director. The Regional Director submits to ADO within five (5) working days, and ADO within five (5) working days prepares an endorsement/report of an Order of Denial to the Commission, which issues its action within ten (10) working days thereafter, transmitted to the applicant and endorsing agency.
If it affects only a particular community, the Council of Elders/Leaders representing the whole ancestral domain determines whether the activity affects the whole domain or only a portion. If it affects the entire ancestral domain, the consent of concerned ICCs/IPs within that domain is required. If it affects two or more ancestral domains, the consent of all affected ICC/IP communities is secured. The scope determination (for partial impact) may be challenged via a petition before the Regional Hearing Officer.
FPIC for a particular proposal is not transferable to any other party, except in cases of merger, reorganization, transfer of rights, acquisition by another entity, or joint venture—provided there are no changes in the original plan and it does not prejudice the ICC/IP community’s interests, rights, and welfare.
Examples include by the applicant: use of force/threat/coercion/intimidation; bringing firearms; bribery or promise of benefits beyond what is presented in preliminary consultative meeting; clandestine negotiations without the council of elders/leaders; and delivery of donations. By NCIP officers: acceptance of gifts/money, consorting with applicant or mediators, failure to act on complaints, gross negligence/deliberate omission, or acting for future reward. By the IP community: solicitation, acceptance of gifts/money, consorting, or giving consent for future reward beyond what was explained. Undue influence by GAs/LGUs/NGOs/groups is also prohibited, except when done during proper consultation meetings.
It is sufficient ground for non-issuance of the Certificate Precondition by NCIP; if already issued, it is a ground for revocation. Serious violations (intentional acts resulting in loss of life or serious damage to property, e.g., through coercion/violence) can also lead to disqualification for future applications within ancestral domains, without prejudice to criminal actions under IPRA or the Revised Penal Code and special laws.
Programs/projects/interventions that do not involve issuance of license/permit/agreement/concession may be exempt from FPIC if solicited by the ICC/IP community themselves from whatever sources in any form, signed by the majority members of the community. However, NCIP must validate the purpose to ensure it bears majority approval and is consistent with the community’s ADSDPP. If unauthorized or contrary to ADSDPP, NCIP requires the FPIC process.