Which island did you visit this summer? With over 7,000 islands to choose from, there’s always a new tropical paradise to discover in our country. Almost everyone dreams of having their own little piece of sanctuary by the shore and for those who actually have the means to turn this to reality, consider that you may not be the first in that place.
In college, I did a lot of field work as a social science major. I majored in behavioral studies, focusing on psychology, sociology and anthropology. I even worked part-time as a student assistant in the university Field School. My experience brought me close to remote communities.
I literally became giddy as a schoolboy when an indigenous people (IP) case was referred to me years back. It meant trading my suitcase for a backpack and getting into my shorts instead of a suit. It meant going on the field to deal with IPs.
The case of indigenous peoples and land policies has been going on for decades. State policies have neglected the plight of our IPs. While it recognizes the existence of the rights of IPs, due to the colonial history of the country, their condition remains the same.
The Spanish Colonial Government introduced the concept of the “Regalian Doctrine” or jura regalia to the Philippines. It basically meant that all lands were owned by the Spanish Crown. This system was carried over to the American period under the Public Land Acts and the Torrens System.
The 1987 Constitution still contains the concept of the Regalian Doctrine in Section 2 Article XII on “National Economy and Patrimony”:
“Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber wildlife, flora and fauna, and other natural resources are owned by the State…”
The Indigenous Peoples Rights Act (IPRA) or Republic Act No. 8371 is regarded as a landmark legislation for recognizing the existence of indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector of Philippine society. It grants them ownership and possession of their ancestral domain and ancestral lands, and defines the extent of these lands and domains. The ownership given is the indigenous concept of ownership under customary law, which traces its origin to native title.
The very definition of what an ICC/IP is anchors itself on the area or territory that they occupy. The IPRA provides that ICCs/IPs “refer to a group of people or homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos.”
The law grants ICCs/IPs, within their ancestral domains and ancestral lands, the right to self-governance and empowerment, social justice and human rights, the right to preserve and protect their culture, traditions, institutions, and community intellectual rights, and the right to develop their own sciences and technologies. It created the National Commission on Indigenous Peoples (NCIP) as the lead government agency on ICC/IP concerns.
Now how do we balance the rights of ICCs/IPs with landowners, developers and the State? First is to recognize the existence of the ICCs/IPs and their rights. Second is to respect their rights over their ancestral domain and ancestral lands.
The law requires that for any person who desires to enjoy land that is within an ancestral domain, the consent of the ICC/IP must be secured. Thus the process for Free Prior and Informed Consent (FPIC) and Certification Precondition (CP) was created.
The NCIP Guidelines provide that “No concession, license, permit or lease, production-sharing agreement, or other undertakings affecting ancestral domains shall be granted or renewed without going through the process laid down by law and FPIC Guidelines.” The procedure includes the following steps:
1. Apply for issuance of certification precondition
Submit company and project profile stating the nature and purpose of the project, location with an indicative map of areas affected, abstract of the project, scope, duration, preliminary assessment of economic, social, cultural and environmental effects, risks, budget and operational plan and activities.
2. FBI or field-based investigation
Validation of application from stakeholders.
3. Work and financial plan (WFP) for FBI/FPIC
An agreement among the applicant, concerned ICCs/IP representatives and NCIP on the costs and conduct of the FBI/FPIC.
4. CNO or certificate of non-overlap
When the area is patently and publicly known to be outside any AD, or the activity is determined, after FBI, not to affect an AD, the NCIP regional director, with the concurrence of the concerned commissioner, shall issue a CNO, provided that the applicant shall execute an undertaking for the conduct of FPIC should it be discovered later that there is an overlap, and provided further that special attention shall be given to ICCs/IPs who are shifting cultivators or traditionally nomadic so as not to prejudice their rights as such.
5. FPIC
All ICCs/IPs who are owners of ancestral domains have the right to exercise FPIC on/for any of the extractive, intrusive or large-scale activities mentioned in the guidelines. Said activities include those that involve exploration, development, exploitation, utilization of land, energy, mineral, forest, water, marine, air and other natural resources requiring permits, licenses, lease, contracts, concession, or agreements; large-scale agricultural and forestry management projects, activities that lead to displacement and/or relocation of ICCs/IPs; large-scale tourism projects; issuance of land tenure instrument or resource use instrument by any government agency and related activities, and the like.
During the FPIC proper, there will be a First Community Assembly when matters like the IPRA and FPIC process will be discussed, validation of the FBI report and areas affected, census of IPs and non-IPs, decision-making process, identification of IP elders and leaders, and other matters.
A Second Community Assembly shall be held when the applicant shall present the project to be undertaken, perceived advantages and disadvantages to the community and mitigating measures. The community shall be allowed to ask questions and speak their concerns during the assembly. Other important matters may be taken up as well.
When the ICCs/IPs are ready with their decision or consensus, the duly authorized community elders/leaders shall communicate to the FPIC team the consensus. If the consensus is favorable, the team shall inform the proponent of the terms and conditions for the Memorandum of Agreement (MOA). If the consensus is not favorable, the Resolution of Non-consent shall be prepared, signed and released.
6. FPIC Report
The report shall contain the recommendations, annexes, and other supporting documents relevant to the application.
7. MOA negotiations
8. MOA drafting and signing
The MOA shall be prepared by the parties and the FPIC Team strictly in accordance with what has been agreed by the parties, written in the language or dialect of the ICCs/IPs, and translated into English and/or Filipino.
9. Final review of the MOA and supporting documents
10. Approval of the MOA by the NCIP
The duration of the FPIC process depends on the scope of the project, the documents and the community involved. A win-win situation is possible as long as the rights of the ICCs/IPs are respected and the interests of the applicant are secured.
The IPRA is a novel piece of legislation that seeks to tilt the balance in favor of ICCs/IPs who have been deprived of their rights over their land for decades. It may not seem to be perfect because of the conflict with the very concept of ownership of land, but it will have to do for now. At least ICCs/IPs who have less in life and land will be given a little more in law.