Legal basis and mandate
- NCIP Administrative Order No. 3, S. of 2002 is promulgated pursuant to Sections 44(m), 46(a), 57, 58, 59, and 7(b) and (c) of Republic Act No. 8371.
- The guidelines implement the requirement of free and prior informed consent (FPIC) of ICCs/IPs in connection with applications for lease, license, permit, agreement or concession and related activities in ancestral domains, grounded on Republic Act No. 8371.
- The Order requires a Certification Precondition from NCIP before government agencies issue, renew, or grant concessions, licenses, or leases or enter into certain resource agreements in ancestral domains under Section 3.
- The Order directs that protective mechanisms be instituted and that NCIP exercise visitorial powers to safeguard ICC/IP rights in resource utilization contracts under Section 3.
- Compliance with FPIC and issuance of Certification Precondition is treated as a legal prerequisite for lawful processing by concerned government agencies under Section 3.
Policy, purpose, and declared intent
- The Order declares that inroads into ancestral domains have led to disenfranchisement and marginalization of ICCs/IPs and have enabled prejudicial policies and harmful undertakings without consent under Section 3.
- The Order states that FPIC is an instrument of empowerment enabling ICCs/IPs to exercise self-determination under Section 3.
- The Order declares as policy that securing FPIC and issuing Certification Precondition must be done with utmost regard to the overriding right of ICCs/IPs to manage, develop, use, and utilize their lands and resources in ancestral domains recognized by the State under Section 3.
- The Order establishes protective mechanisms to guarantee realization of ICC/IP rights within national unity and development under Section 3.
- The Order strictly enjoins all concerned departments and government agencies not to issue, renew, or grant any concession, license or lease, and not to enter into any production-sharing agreement, without the NCIP certification precondition or concomitant compliance with the FPIC requirements under Section 3.
Key terms established and used
- Section 5(a) defines ADSDPP as the Ancestral Domain Sustainable Development Protection Plan drawn and adopted by the ICC/IP community to govern sustainable traditional resource use rights, development framework, and value systems.
- Section 5(b) defines Customary Laws as written and/or unwritten rules, usage, customs, and practices traditionally and continually recognized, accepted, and observed by ICCs/IPs, including community norms of conduct and binding patterns of relationship over time.
- Section 5(c) defines Certification Precondition (CP) as NCIP-issued certification that the site covered by an application does not overlap with any ancestral domain area, or if it is within an ancestral domain area, that required FPIC was properly obtained in accordance with the guidelines.
- Section 5(d) defines Free and Prior Informed Consent (FPIC) as consensus of all members of the ICCs/IPs determined under customary laws and practices, free from external manipulation, interference and coercion, obtained after full disclosure in an understandable language/process, and given by signing a Memorandum of Agreement containing conditions/requirements, benefits, and penalties.
- Section 5(e) defines Field-based Investigation (FBI) as on-site inspection and investigation to ascertain presence/absence of ICCs/IPs and/or ancestral domains in the areas covered by an application for Certification Precondition or related agreements.
- Section 5(f) defines ICCs/IPs as organized homogeneous societies identified by self-ascription and ascription by others, continuously living on communally bounded and defined territory, claiming ownership since time immemorial, sharing bonds of language/customs/traditions and distinctive cultural traits, retaining some or all social/economic/cultural/political institutions, even if displaced or resettled.
- Section 5(g) defines Indigenous Knowledge Systems and Practices as evolving systems and mechanisms comprising unique knowledge embodying relationships among peoples, lands, and environment across social/political/cultural/economic/religious spheres.
- Section 5(h) defines Elders as individual IPs or ICC members of esteem, dignity, respect, integrity, relied upon as information sources, counsels, and knowledgeable practitioners of customs and traditions.
- Section 5(i) defines Self-Determination/Governance as pursuit of ICC/IP economic, social, and cultural development; promotion and protection of integrity of values/practices/indigenous knowledge and institutions; determination and control of organizational leadership and participation systems.
- Section 5(j) defines Sustainable Traditional Resource Use Rights as rights to use, manage, protect, and conserve specified resources and areas (land, air, water, minerals; plants/animals/organisms; collecting/fishing/hunting grounds; sacred sites; and all areas of economic/ceremonial/aesthetic value) according to indigenous knowledge, beliefs, systems, and practices.
- Section 2 sets the objective to ensure community participation in securing FPIC, protect ICC/IP primary rights, provide procedures and standards on FBI charges, compensation for damages, and administrative sanctions for intentional prohibited acts, and ensure just partnership and equity in resource/environmental management and development within ancestral domains.
Coverage and situations requiring FPIC/CP
- The guidelines recognize that ICCs/IPs determine for themselves policies, development programs, projects, and plans to meet priority needs and concerns under Section 6(a).
- ICCs/IPs have the right to accept or reject development activity/undertaking in their communities under Section 6(b).
- Acceptance/rejection is assessed using the ICC/IP development framework and value systems protecting ancestral domains as the source of life; kinship/support systems; sustainable traditional agricultural cycles and indigenous management systems; and houses/properties/sacred and burial grounds under Section 6(c).
- The guidelines cover programs/projects/activities including exploration, development, exploitation, and utilization of natural resources for commercial purposes within ancestral domain/lands by IP and non-IP alike under Section 6(a).
- The guidelines cover research on indigenous systems/knowledge/practices relating to agriculture/forestry/watershed/resource management; medical/scientific concerns; bio-diversity and bio-processing including gathering biological and genetic resources under Section 6(b).
- The guidelines cover archaeological explorations/digging/excavations and access to religious sites under Section 6(c).
- The guidelines cover activities impinging on spiritual and religious traditions, customs, ceremonies, and ceremonial objects under Section 6(d).
- The guidelines cover programs/projects/activities leading to displacement and/or relocations of indigenous peoples under Section 6(e).
- The guidelines cover entry of migrants and other entities doing business or engaging in development activities inside ancestral domains under Section 6(f).
- The guidelines cover management of protected and environmentally critical areas and other joint undertakings within ancestral domains under Section 6(g).
- The guidelines cover implementation of government reforestation and infrastructure projects under Section 6(h).
- The guidelines cover activities adversely affecting airspace, bodies of water, and lands of ancestral domains under Section 6(i).
- The guidelines cover policies affecting the general welfare and rights of ICCs/IPs under Section 6(j).
- The guidelines cover occupation by military or paramilitary forces or establishment of temporary or permanent military facilities within domains under Section 6(k), while allowing military operations traversing ancestral domain areas without required FPIC only when done in connection with hot pursuit operations and for a duration not to exceed seven (7) days under Section 6(k).
- The guidelines cover other similar or analogous activities/undertakings under Section 6(l).
Certification precondition and field investigation workflow
- Applications for lease, license, permit, agreement, and/or concession to implement or operate programs/projects/activities in ancestral domains are directly filed by the proponent to the concerned government agency for compliance with the agency’s regulatory requirements, and that agency endorses the application to NCIP for Certification Precondition under Section 7.
- Endorsement must be addressed to the NCIP Chairperson through the Ancestral Domains Office (ADO), and requests for Certification Precondition coming directly from proponents are not acted upon under Section 7.
- If the undertaking is proposed by the ICC/IP, NCIP verifies that it complies with the community’s ADSDPP; if proposed within the community’s ancestral domain by an IP who is a member thereof, NCIP verifies compliance with the community’s ADSDPP and FPIC requirements under Section 7.
- For verification, NCIP field office must always be informed by the proponent IP/group of IPs of any undertaking requiring FPIC of the ICC/IP community to which they are members as provided by the guidelines under Section 7.
- In absence of an ADSDPP, NCIP assists ICCs/IPs in formulating the required ADSDPP under Section 7.
- Collaboration of accredited NGOs in processing is recognized under Section 7, and NCIP ensures the proponent(s) are not made to appear under any scheme/arrangement by any person or entity intended to circumvent CP and FPIC requirements under Section 7.
- If the undertaking is proposed by an IP individual or group of IPs who are or are not members of the ICC/IP community, the proponent must file with the appropriate government agency regulating the proposed undertaking; after endorsement by that agency to NCIP, the application undergoes required CP activities under Section 7.
Required fees, FPIC steps, MOA, and certification
Field-based Investigation Fee: the applicant/proponent must pay a fixed amount of PHP 5,000.00 as FBI Fee at the concerned NCIP Regional Office under Section 13(a).
FBI Fee deposit must be properly documented under Section 13(a).
FPIC Fee: if FBI reveals the need to secure FPIC, the applicant/proponent must deposit the FPIC Fee amount estimated by the concerned NCIP Regional Office based on gathered data, including transportation, food allowance, and other necessary expenditures relative to the number of days and number of participants under Section 13(b).
Remaining unspent FPIC Fee must be accounted for and returned to the applicant/proponent at the end of FPIC proceedings under Section 13(c).
Collection of FPIC Fee on cost estimates made without sufficient basis constitutes illegal exaction of money and must be proceeded with in accordance with law under Section 13(d).
FBI timing and team composition:
- Within five (5) working days from receipt of endorsement by NCIP Chair/ADO direction, the Chairman directs the Regional Director to constitute the FBI team and designate a team leader under Section 9(a).
- FBI team members must not be less than five (5): two (2) from the Regional Office and three (3) from the concerned Provincial Office or Community Service Center under Section 9(a).
- The team receives a Work Order by the Regional Director under Section 9(a).
Secondary sources assessment: FBI team assesses secondary data before actual site inspection within fifteen working days from receipt of the Work Order under Section 9(b).
FBI report: within fifteen (15) working days after FBI, the team prepares a report with recommendations to the Regional Director under Section 9(c).
Regional Director forwarding: within ten (10) working days from receipt of FBI report, the Regional Director forwards the report with recommendations to ADO under Section 9(d).
Certification Precondition issuance:
- ADO evaluates the reports and causes issuance of Certification Precondition; ADO must not act on recommendations irregularly evaluated/endorsed by the Regional Director under Section 9(e).
- Within seven (7) working days from receipt of report/endorsement, the ADO Director issues the Certification Precondition or appropriate document to the requesting agency under Section 9(f).
FBI report content: the report must contain minimum items listed in Section 10 (date; secondary data assessment and sources; dates and sites; locations; authorized FBI team names/designations; objective; places visited; persons interviewed and positions; observations/comments; if overlap: estimated indigenous population and preliminary documentation of consensus-building processes and identification of authentic leaders; assessments; if FPIC is requisite: estimated cost to be deposited; recommended action/endorsement to ADO).
Mandatory FPIC process activities are ensured by ADO through the Regional Office under Section 14:
- Notices: NCIP must post notices in conspicuous places; notices must include meeting date/venue, objectives and scope, and proponent identity; NCIP must also personally serve notices to the Council of Elders/Leaders at least five (5) days before preliminary consultative meeting, requiring their presence under Section 14(a).
- Validation of elders/leaders list: FBI team conducts random listing of elders/leaders identified by community members; NCIP facilitates a convention to validate authenticity through customary qualification, ensuring genuine representation for negotiations under Section 14(b).
- Preliminary consultative meeting: must be conducted within fifteen (15) working days from submission of the applicant’s operation plan; participants include council of elders/leaders, proponent representatives, NCIP, and representatives from collaborating NGOs and civil society; the proponent must present and clarify the Operation Plan and scope (cost/benefits, disadvantages/adverse effects and mitigation, commitment to a post-performance bond); NCIP presence is mandatory for facilitation and education on IPRA/FPIC/ICC/IP rights; other representatives present views; oppositors receive equal time; meeting mechanics set by NCIP after consultation under Section 14(c).
- Consensus building by elders/leaders: within fifteen (15) days after the last final preliminary consultative meeting, elders/leaders complete their own consultation meetings with community members using customary consensus-building processes; during this period, no preliminary consultative meeting participants may stay in the community except the NCIP representative; NCIP documents proceedings under Section 14(d).
- Community Assembly: within fifteen (15) days after lapse of the elders/leaders consensus-building period, NCIP causes assembly of community members represented by household heads; NCIP determines votes by raising of hands for or against; leaders/elders explain votes; if decision is for the proposal, terms/conditions of consent are explained; decision is documented; translated terms are embodied in a MOA signed by both parties with NCIP Chairman as third party signatory; community representative chosen by elders/leaders; MOA translation prepared in dialect under Section 14(e).
Issuance and form of FPIC certification:
- ICC/IP community finally issues FPIC through authorized representative(s) upon signing the Memorandum of Agreement under Section 15(a).
- The MOA/consent documentation must be written in English or Tagalog and in the appropriate IP language; signatures or thumb marks must be affixed on each page for consent or rejection under Section 15(a).
- If rejected, ICC/IPs must state in writing whether they will entertain alternative proposals; alternative proposals require another FPIC process; no FPIC process is repeated once a proposal has already been rejected under Section 15(a).
Scope of who must give FPIC depends on impact area under Section 16:
- If affected only a particular community, that community gives FPIC; Council of Elders/Leaders representing the whole ancestral domain determines whether it affects the whole ancestral domain or any portion; scope determination may be challenged by petition before the Regional Hearing Officer and requires signatures of a majority alleging the Council did not reconsider despite opposition under Section 16(a).
- If affects the entire ancestral domain, consent of the concerned ICCs/IPs within the ancestral domain is secured under Section 16(b).
- If affects territories covering two or more ancestral domains, consent of all affected ICC/IP communities is secured under Section 16(c).
Non-transferability: FPIC for a particular proposal is not transferable to another 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 the arrangement does not prejudice ICC/IP interest, rights, and welfare under Section 17.
Endorsement and attachments to ADO:
- Regional Director endorses FPIC Certification to ADO for evaluation and subsequent issuance of CP under Section 18(a).
- Endorsement must enclose notices of meetings (English/Pilipino and IP language), minutes of meetings and proceedings, minutes of consultation meetings with affected communities, negotiation minutes on FPIC terms, validation minutes, sketch map of impact area, documentation of customary consensus-building practice, and census of ICC/IP population under Section 18(a).
Process requirement for issuance:
- If the applied and impact area is non-ICC/IP and/or does not overlap with ancestral domain based on FBI, the appropriate CP is issued immediately through the concerned Regional Director under Section 19.
- If FBI indicates presence of ICCs/IPs or overlap to ancestral domain, FPIC through customary consensus-building is required before issuance of CP under Section 19.
CP issuance:
- The appropriate certification precondition must be issued within fifteen (15) working days from receipt of the pertinent recommendation/endorsement; ADO endorses for approval by the Commission; issuance attaches the MOA and FPIC certification by the concerned host ICC/IP under Section 20(a).
Non-consent procedure under Section 21:
- ICC/IPs must state specific reasons for non-consent in writing, signed/thumb marked by authorized leaders/elders on every page, then submit to Regional Director.
- Regional Director submits the document to ADO within five (5) working days from submission.
- ADO within five (5) working days prepares report and endorsement of denial order to the Commission.
- Commission within ten (10) working days issues appropriate action transmitted to applicant and endorsing agency through ADO under Section 21.
Memorandum of Agreement rules and dispute paths
When FPIC is favorable, agreements and conditions are embodied in a Memorandum of Agreement (MOA) between/among ICCs/IPs, the proponent, and NCIP and any other party involved, witnessed by members under Section 22(a).
If proponent personalities change, MOA terms bind the new proponent without necessarily executing another MOA under Section 22(a).
The MOA must be written in English or Tagalog and in the appropriate IP language under Section 22(a).
Parties executing the MOA must acknowledge terms and due execution before a notary public or persons authorized by law to administer oath under Section 22(a).
MOA contents must include items listed in Section 23(a): detailed premises; all parties; inclusive dates/duration; benefits (type; specific target beneficiaries by sector and number; period; and other monitoring guidance); use of funds ensuring allocation for development/social services/infrastructures consistent with development framework; measures to protect IP rights/value systems; measures to conserve/protect affected ancestral domain critical portions for watersheds, mangroves, wildlife sanctuaries, forest cover, and like; responsibilities of proponent and host ICC/IP community; MOA monitoring and evaluation schemes; and penalties for non-compliance/violation.
MOA signatories:
- ICC/IP community signatories are authorized community elder/traditional leaders recognized by the community.
- Corporations/partnerships/single proprietorship sign through authorized officers/representatives/partners as per board resolution.
- NCIP signatory as third party is the Regional Director by authority of the Commission under Section 24(a).
Complaints on MOA implementation must be filed at the NCIP Regional Hearing Office under Section 25(a).
Regional Hearing Officer decision may be appealed to Commission en Banc, and that decision is appealable to the Court of Appeals under Section 25(a).
The Regional Hearing Office acquires jurisdiction only upon written certification from the Council of Elders/Leaders that the complaint was not resolved in accordance with their traditional conflict resolution institutions applying customary laws/practices under Section 25(a).
Customary law and sanctions:
- Willful violation or failure to comply with MOA duties may be proceeded against under the host ICC/IP customary laws/practices with sanctions, provided sanctions are not cruel and humanly degrading under Section 26(a).
- This is without prejudice to NCIP’s visitorial and injunction powers, and customary law/practice forms part of MOA supporting documents under Section 26(a).
Commission action on petitions is embodied in a resolution, a copy forwarded to the ADO under Section 27(a).
Roles, responsibilities, and NCIP offices
- The proponent must at minimum: prepare and submit the project proposal; present and submit in a language understandable to the community details of possible ecological/economic/social-cultural impacts and how adverse impacts are avoided/mitigated; pay the field-based investigation fee; and, if FBI requires FPIC, submit the required Operation Plan and deposit the FPIC fee according to the guidelines under Section 28(a).
- ICCs/IPs must: determine customary consensus building practice in writing in their dialect, translate it into the major dialect, and ratify it by all heads of families and clans or authorized representatives; identify elders/leaders or representatives in writing who can sign for them; ensure council of elders/leaders are with NCIP for record and recognition, and FPIC signatories are not represented by heads of coalitions/organizations living outside the concerned ICC; and keep the original copy of the MOA under Section 29(a).
- NCIP Regional Office responsibilities include: collect and issue official receipt for inspection fee; conduct census or genealogical survey; document customary consensus building; evaluate and coordinate FPIC Action Plan; facilitate registration of authentic IPOs/elders/leaders/representatives; facilitate MOA execution and endorse for review and authority to sign as third party; monitor MOA compliance; and keep certified true copy of MOA under Section 30(a).
- NCIP ADO responsibilities include: evaluate and validate, if necessary, FBI and FPIC process; monitor FBI/FPIC process; and keep duplicate copy of MOA under Section 30(b).
Prohibited acts and administrative consequences
During pendency of the application (after filing and while pending), prohibited acts/omissions are deemed prejudicial to ICC/IP consent attainment or acts in circumvention of the FPIC requirement and are prohibited under Section 31.
Prohibited acts by applicant/proponent:
- Employment or use of force, threat, coercion, intimidation of any degree or manner by individuals/groups acting for the applicant.
- Bringing firearms into the community during applicant visits; armed security must be obtained from local police authorities or the AFP as requested by NCIP when needed.
- Bribery or promise of money/privilege/benefit/reward other than what is presented by applicant/proponent during preliminary consultative meeting with the Council of Elders.
- Clandestine/surreptitious negotiations with IP individuals/community members without knowledge of council of leaders/elders.
- Delivery of donations of any kind to the community or any of its members under Section 31(a).
Prohibited acts by NCIP officers/employees:
- Acceptance/receiving of gifts or money from the applicant.
- Consorting with the applicant or persons connected to or mediating for the latter.
- Deliberate failure to act appropriately on community complaints about prohibited acts by applicant or its representatives.
- Gross negligence or deliberate omission to perform duties required by the guidelines within authority.
- Acting on/performing duty for future reward, promise of money, privilege, or benefit from the applicant under Section 31(b).
Prohibited acts by the IP community or member:
- Solicitation of any kind from the applicant.
- Acceptance/receiving of gifts or money from the applicant.
- Consorting with the applicant or persons connected/mediating for the latter.
- Giving/promising consent in consideration of future reward/money/privilege/benefit other than what was provided/explained to the Council of Elders/Leaders during consultation meetings under Section 31(c).
Prohibited acts by GAs/LGUs/NGOs and other groups:
- Undue influence to the community by representatives of NGOs or government agencies/local government instrumentalities (including barangay officials and functionaries) and other entities/groups with religious affiliations, except influence made during consultation proceedings or meetings conducted under the guidelines under Section 31(d).
Administrative sanctions are imposed by the Commission only after due notice and opportunity to be heard under Section 32(a).
Sanctions against the applicant/proponent under Section 32(a):
- Commission of prohibited acts attributable to applicant is sufficient ground for non-issuance of CP or revocation if already issued.
- Commission may proceed motu proprio or upon complaint.
- Serious violations are a ground for disqualification for future applications for CP within ancestral domain areas, without prejudice to filing of appropriate criminal action under IPRA or the Revised Penal Code and special laws.
- Violation is considered grave when intentional and results in loss of life or serious damage to property of an IP member of the community, committed by employment/use of force, threat, coercion, intimidation, violence by individuals/groups acting for the applicant.
- Disqualification may be lifted only upon petition by the individual/entity disqualified, stating grounds; no petition is entertained without favorable recommendation of the ICC/IP whose rights were seriously violated.
Sanctions against the IP community under Section 32(b):
- Commission calls attention of the Council of Elders/Leaders for proceedings under their customary laws.
- If prohibited act extent unjustly affects the outcome of community consent proceedings, Commission suspends the proceedings until the Council shows that prohibited acts were addressed under customary laws.
Sanctions against NCIP officer/employee under Section 32(c):
- Upon finding of prima facie evidence, authority divestment occurs immediately upon Chairperson order; officer/