FPIC is a must even for existing projects

IP Concerns

Rocky Ngalob

With due respect to National Commission on Indigenous Peoples [NCIP] Commissioner Gaspar A Cayat, more than just an agent of NCIP, but as a member of indigenous peoples [IPs], I must dissent on erroneous claims that rights to free, prior and informed consent [FPIC] is no longer applicable when a project existed and operated before enactment of the Indigenous Peoples Rights Act [IPRA] of 1997.
    A video taken last 2021 has recently surfaced with Commissioner Cayat conducting an information education campaign [IEC] activity with IPs of Sison Pangasinan.
    Said video showed the Commissioner arguing that IPs’ right to FPIC does not apply to National Cement Corporation [NCC] for the reason the company had operated and existed before IPRA.
    In the video, Commissioner Cayat indirectly discouraged the IPs of Sison from asserting their due rights to FPIC by suggesting direct negotiation for their royalty monetary shares. It was later found out that the video was publicly posted on the official social media page of the Commissioner by his Executive Secretary. Interestingly, just last month, a case was filed against Commissioner Cayat for his unlawful issuance of an unnumbered Certificate on Non-Overlap [CNO] absolving NCC of mandatory requirement of FPIC and Certification Precondition for reasons only known to the Commissioner.  
    The pronouncement of the Commissioner is wrong and must be corrected. FPIC as a matter of public policy, must not be dispensed with. Let it be known that the IPs' rights to FPIC apply to projects that have existed and have continuously operated, like mining, within Ancestral Lands and Domains, even before the enactment of IPRA.
    The claim of the Commissioner is frowned upon by the landmark legislation IPRA and goes contrary to its noble spirit. Companies who have enjoyed and exploited IPs’ resources within Ancestral Lands and Domains, without due consent, are just one of many injustices which IPRA intends to cure. Thus, dispensing FPIC is an antithesis of IPRA. 
Condoning a rapist 
Pardon for using the word ‘rape’ in elucidating what IPRA is expected to correct and protect. If the statement of the Commissioner was left tolerated, such erroneous claims would be construed as forcing our IPs to sleep with their rapist. More so, conditioning the minds of our IPs to yield straight away to negotiation for royalty shares and/or monetary compensation as their sole and only option, rather than asking first for their prior consent, is no different from persuading our IPs to marry their rapist just so they can claim child support for the unwanted offspring. Simply put, IPRA, as a curative law, is akin to a vaccine made not only to cure but to prevent further effects of the disease brought by historical injustices against our IPs.              
    I join the elder in the video who refuted the claims of the Commissioner. The elder is correct in underscoring that there shall be no renewals of Mineral Production Sharing Agreements [MPSAs] without the consummation of the FPIC and the issuance of the Certification Precondition [CP].
    Obviously, the elder had been reading IPRA and is quite aware of its provisions. I’m just surprised that of all people, the NCIP Commissioner, as a member of the highest policy-making body of NCIP, was seemingly not aware of such. It puts a smile on my face that there are still elders who are willing, without fear of reprisals, to debate with high-ranking officials. However, these types of elders are becoming less and less occurring. I just hope no one throws the mold.
FPIC and the CP is a condition ;Sine qua non’  
Let it be known, rooted in no less than the Philippine Constitution, as well as being clear, categorically, and positively reflected in IPRA, the existence and mandate of the invoked public ensuring the protection of the rights of the ICCs/IPs to their Ancestral Domains cannot be undermined, worse disregarded. It should be borne in mind that IPRA, as a noble piece of legislation, was crafted to address the centuries-old neglect of the Philippines by the ICCs/IPs. Previous Implementing Rules and Regulations (IRR) all the way to the prevailing FPIC guidelines under NCIP Administrative Order 3 S 2012 outlines 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 [FPIC process].”
    Verily, the Certification Precondition, which includes obtaining FPIC from the affected indigenous peoples, must be strictly complied with before such agreements, like the MPSA, may be renewed. If corporations are prohibited to circumvent this requirement on a mistaken notion that they still have vested rights by virtue that their facilities have existed and operated prior to the enactment of IPRA, more should the Commissioner or any agent of NCIP, tasked to uphold mandatory nature of FPIC, must sustain the same. 
Quo vadis Mr. Commissioner?
Was the claim of the Commissioner for waving the FPIC for existing and operating companies the official stance of the Commission? I think not and from the immortal words of the Commissioner on another video spread throughout social media, “that is a misnomer”. 
    It can be recalled that the NCIP Commission En Banc [CEB], a collegial body where ironically Commissioner Cayat is a part of, issued earlier “CEB Resolution 08-018-2021”. Said instrument declared the infamous Memorandum Order No. 148, “null and void ab initio for being used contrary to law, IPRA and its Guidelines, and for being contrary to public policy and public morals' '. This Memorandum Order No. 148 was quite famous then for the IPs of Itogon and Bokod. This Memorandum Order 148 was the exact tool used by the corporation operating the Ambuclao and Binga dams to elude the mandatory FPIC process. Fortunately, after a series of lobbying by NCIP field personnel, the 8^th Commission struck it down and compelled the company operating the dams to comply with the mandatory FPIC.   
    Given this clear stance of the 8^th Commission on existing and operating projects within the Ancestral Lands and Domains, it would seem Commissioner Cayat was either deliberately ignoring his office’s duties and responsibilities, or he was caught via video shooting from the hip. The lack of stutter in n his speech and the overwhelming confidence in the tone of his voice says the former.   
    Lastly, the Supreme Court ruled last year underscoring the strict observance of the mandatory prior consummation of the FPIC and CP before an MPSA can be renewed.
Said ruling now dubbed as Cosalan VS Lepanto, underscored that all mining companies should comply first with     FPIC and its CP otherwise the protection that the Constitution and IPRA seek to afford our ICCs/IPs would be pointless. Said case gave a clear-cut framework that the mandatory requirement of FPIC, as a matter of public policy, cannot and shall not be dispensed with and that renewal of MPSAs covering Ancestral Domains of the IPs is not automatic.
    This ruling which now forms parts of the laws of the land was welcomed and celebrated by the IPs/ICCs of Mankayan not only as a victory for their own Ancestral Domain but for the entire populace of IPs including their brothers and sisters in Sison Pangasinan.  
    The Commissioner, while clothed with authority as an agent of NCIP, opinion or not, shot himself in the foot when he uttered the non-applicability of FPIC for existing projects. Alas, such pronouncement is an abomination inside the agency NCIP created by IPRA.