NCIP-Benguet reviving dying IKSP through Tapey making

 IP CONCERNS

Rocky Ngalob

ATOK, Benguet -- National Commission on Indigenous Peoples – Benguet Provincial Office awarded rice wine making equipment to the indigenous cultural communities / indigenous peoples [ICCs/IPs] of Barangay Naguey, an heirloom rice producing community, within the Atok ancestral domain [AD] as instructional materials to be used by the Naguey Rural Improvement Club [NRIC] in teaching and passing-on the age-old traditional process of making ‘tapey.’
    “More than just your typical livelihood program to help ease the financial constraints of the IP communities, these set of tools for “Tapey” making, were seen as NCIP-Benguet’s intervention to the cultural drain of the IP Youth brought by modernization and commerce”, according to NCIP community affairs officer Genalyn Badival.
    As project implementor, she said she recognizes that while the tools may not substantially provide income, she is optimistic that with this simple gesture, it will provide an avenue for the IP community for an inter-generational exchange of indigenous knowledge systems and practices [IKSP] with the IP Youth.
    Badival who hails from Naguey and an IP youth herself, said that the IKSP or traditional process makes the ‘tapey’ exceptional.
    “By equipping the IP community with these tools, we are indirectly providing an opportunity and channel for the IPs’ traditional ‘tapey’ making to be passed on. We wish to unlock that repository of knowledge sealed within the minds of our elders by providing these equipment as reasons for them to impart how they are used in the ‘tapey’ making process to the next generation.We also want to revive that distinctive taste which separates ‘tapey’ with ordinary wines”, said Badival.
She added this intends to help the IPs’ IKSP alive and relevant.
    “Apart from blood, the IKSP, alongside the recognition and respect to the same, is a vital ingredient that makes us IPs. Absent our recognition and familiarity to our IKSP strips us of our identity as an IP. And just like ‘tapey,’ absent any semblance of the aged-old customary processing honed by centuries of experience, reduces the quality and taste which distinguishes ‘tapey’ from the rest of the rice wines.”
    According to wine aficionados, locally produced ‘Tapey’, through the years, lost its distinctive taste.
    A rare taste, they said, is easily identifiable only in genuine ‘tapey’.
    Such taste which can only be experienced in rice wines served inside IP homes and weddings in the provinces. This distinctive taste, or as they call it “the IP touch”, makes ‘tapey’ unique.
    Even with locally produced wines sold in the market coming from the different provinces, consumers can easily single-out a genuine ‘Tapey’ by mere whiff of its aroma.
    This unique distinction of ‘Tapey’ may only be replicated if the producers of the same followed the aged-old process of traditional fermentation all the way to its storage using clay jars locally dubbed as the ‘gusi’.
    Apart from weddings, according to one elder, ‘tapey’ serves as one of the key ingredients during ritual ceremonies. Never had the IPs viewed before that the ‘Tapey’ will be subject for commerce.
    The purpose of ‘tapey’ then was for self-consumption. Only recently, that we witnessed a shift on the purpose of the ‘tapey’ -- from a household item for self-consumption and integral to the community’s daily life, towards a product now susceptible for appropriation and commerce.
    It is this distinctive taste of ‘tapey’ that invited patrons outside the IPs’ boarders, which in turn, opened the concept mass production. Resultantly, the IP community unconsciously abandoned the tedious and conventional ‘tapey’ making reducing its distinctive taste.
    “Those who will be benefited from this awarding/turn-over, aside fromNRIC, are the IP community members, especially the IP youth, who will be extracting knowledge on traditional ‘tapey’ making from their respective culture bearers. Other than NCIP-Benguet, the project and activity was likewise a collective effort of NCIP Atok Community Service Center and all of its staff,” Badival said.
    The awarding of the ‘tapey’ making tools is part of the NCIP-Benguet’s celebration for the August 9 International Day of World’s Indigenous Peoples.

 

IP CONCERNS 

Rocky Ngalob

After defeating Lepanto, what’s next for Mankayan?

The recent decisions of Supreme Court in Cosalan versus Lepanto and National Commission on Indigenous Peoples versus Lepanto is a vivid manifestation that our judicial system works.
    These latest Supreme Court rulings placed the IPs of Mankayan on the Philippine map worthy of emulation from the rest of the IPs. The IPs of Mankayan’s unpopular opinion before is now the majority battle cry of the greater IP majority.
    On retrospect, it can be recalled sometime 2014, Lepanto Consolidated Mining Company sought  renewal of its Mining Production Sharing Agreement (MPSA). During this time, Lepanto, who has mined and enjoyed the rich natural bounty of mineral resources within the Ancestral Domain (AD) of Mankayan town in Benguet for more than two decades, was required to undergo the Free and Prior Informed Consent (FPIC) process before its MPSA will be renewed. Further, parallel to the application for renewal for its MPSA, Lepanto alongside one partner corporation have a pending FPIC process for a separate Financial and Technical Assistance Agreement (FTAA) also within Mankayan. The latter FTAA application however was met with numerous resentments from the IPs who resorted to mass actions.
    Due to these resentments and perhaps fearing that its MPSA might be given the same treatment, Lepanto took the cuddles of the courts and choose to carry-on their quest for renewal by stretching the technicalities of our laws. Boy, it worked-out for Lepanto because in 2015, the exact year of the supposed expiration of its MPSA, the company was able to secure a “writ of preliminary injunction” from the court which barred NCIP and other government agencies from disturbing the mining operations of Lepanto.
    Also, in that same year, Lepanto was able to secure an arbitral award which downplayed the requirement of FPIC, seemingly extending or automatically renewing the MPSA for another 25 years.
    Thereafter, Lepanto held on to this award and to the issuance of the injunction of the court. They simply went on with its operation within Mankayan while the IPs, the steward-owners of the AD and its mineral resources, were reduced as mere spectators, helplessly staring at their resources get exploited by Lepanto within their own backyard.
    This horrid scenario went on for eight long years until June 2022 when the Supreme Court overturned its subordinate courts and set aside the arbitral award compelling to Lepanto to submit itself to FPIC. Another Supreme Court ruling followed suit on March 2023, this time lifting the injunction against government agencies from disturbing the mining operations of Lepanto.
    The two separate Supreme Court ruling set a precedent which now forms parts of the laws of land in matters concerning FPIC relative to existing and operating Companies within the IPs’ ADs.
    With this, companies can no longer dispense FPIC by seeking refuge on the argument that they have been existing and operating prior the enactment of IPRA on 1997. Needless to state, a commissioner or a gasoline station owner can no longer deceive the IPs forcing them to waive their due right to FPIC process in favor of a renewal of MPSA for a certain cement corporation.
    We deduce that this victory was the fruit of consistent collective actions of the IPs of Mankayan.
    Their unwavering spirit to pursue their rights as accorded within IPRA, notwithstanding how unpopular they may be before, served as the vital ingredient in their crusade.
    They may have been classified before as subversives for voicing out their sentiments via megaphones and painted placards, but look at them now. Sure, they may have been at the receiving end of countless ridicule and harassments, yet who would’ve thought that the price of such, was much sweeter and far valuable than all of ores within their lands.
These IPs should now hold their chins high. And by all means, let them shout, “We told you so!”
    Interestingly, at present, there are three big mining companies operating within Benguet whose MPSAs are bound to expire on 2025.
    The renewal of their MPSAs and the extension of their mining operations now rest in the hands of the IP host communities whether the latter, through the FPIC process, will consent to such. For a mining company who had fairly treated its IP host community as its co-equal partner in the past 25 years of operation, renewal of its MPSA will
perhaps be easy.

However, the same cannot be said for an abusive and exploitive mining company. Surely, our IPs will seize this opportunity to confront mining companies who have aggrieved them.

With the way things are, considering the past contributions of mining to our economy and environment, I think we all have an inkling on how the IPs of Benguet will dispose of their decision comes the renewal application of these three big mining companies on 2025.

I’m imagining these mining companies praying to the heavens for an amnesia to wipe clean the memories of our IPs in the past 25 years.

Reality dictates that a landlady can easily, and has all the reasons, to boot-out an abusive tenant right after the expiration of the lease.

Like the IPs, the landlady has the freedom to either look for other tenants or choose to live and develop the said property for the enjoyment of her future offspring.

It’s now year 2023, and none from these three big companies unilaterally attempted to pursue the FPIC for the renewal of their MPSAs prior to the imminent expiration on 2025.

I’m not jumping the gun here. Yes, the FPIC process this early might still be considered premature. But isn’t it a common etiquette for all of us to settle our bills days before its due?

Because if we don’t, we risk disconnection of our internet, electricity and water supply.

I just hope the Mining and Geosciences Bureau (MGB) will stop the operations of mining companies when their MPSAs reached its expiration. If no, the MGBs inaction, will again be exploited by mining companies as a scheme to drag the FPIC process.

While IPs wait for that faithful day, expect numerous maneuverings from these mining companies prior to the expiration of their MPSAs. I foresee that they will explore and exploit every opportunity for them to be able to control the eventual FPIC of the IP Communities.

They might pool funds to ensure that their candidates will secure a seat this coming barangay elections. Others may even indirectly push for a re-organization or re-election of the different Ancestral

Domain Indigenous Peoples Organizations (IPO), while the rest may dip their fingers in the selection of the different Indigenous Peoples Mandatory Representative IPMRs.

The road was opened by the Mankayan IPs’ vigilance, which in turn, was cemented by the two Supreme Court rulings. Hence, no reasons for us to be apathetic.

Parallel to the collective actions of the Mankayan IPs, were legal battles fought by their own fellow IP lawyers worth mentioning, from attorneys Ronald Cosalan (then Benguet Congressman), Faustino Olowan (now Baguio City Vice Mayor) to the ragtag duo of Arthur Herman and Jeanete Florita of the NCIP.

 

 

 

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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.

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IPs’ right to self-determination determined by others

IP CONCERNS

Rocky Ngalob      

BAGUIO CITY -- My five years at the National Commission on Indigenous Peoples (NCIP) taught me tip-toe on a very thin line so as not to the stain my impartiality in the conduct of the Free Prior and Informed Consent (FPIC).
    I learned to numb my emotions towards proposed projects to be situated within the Ancestral Domains (ADs of the Indigenous Peoples (IPs).
    My personal views towards mining, dams, logging and any other invasive projects became immaterial in every evaluation, review and/or facilitation of the FPIC process I’ve done.
    This I must do in order to maintain the sanctity of the FPIC due to the IPs for the full and genuine realization of their right to self-determination.
    Some of my colleagues might not agree with this. A handful of principled colleagues will say, NCIP’s partiality must be tilted for the IPs considering that IPRA, a legislation enacted solely for the IPs, was meant to protect, recognize and respect the rights of the IPs.
    While the unfortunate majority will argue that they are for pro-development and pro-progress projects by siding any corporation wanting to use and exploit resources within the ADs.
    Thus, they will muster all of their connections and influence to lobby for any projects, they deemed it for development and progress, and sway the IPs into accepting or consenting to such.
    Resultantly, those IPs who will resent or reject projects, deemed to be for development and progress, will be ridiculed as uneducated and less-informed or “they do not understand”.
    And if they will argue or try to explain why they are rejecting, as a gesture to their rights to self-determination, they will be vilified or red-tagged as member or supporters the Communist Terrorist Groups (CTG).
    To better elucidate my view, we look at a co-equal government agency, the Commission on Elections (COMELEC). To me, NCIP is akin to COMELEC in conducting FPIC. Like NCIP the Commssion on Elections must maintain impartiality in conducting their mandates in the elections.
    They shall never, at any circumstance, present their partiality, to any of the candidates vying for public office. Just like NCIP, the Comelec shall desist from conditioning the minds of the electorate in favoring any of the candidates. Same is true during FPIC, the NCIP must not endeavor to campaign, either for or against, a proposed project. Both NCIP and COMELEC must, at all times, advocate the strict and religious compliance or conduct of their respective policies.
    The NCIP’s impartiality is crucial in every endeavors, apart from FPIC. They must learn to unlearn whatever they have studied regarding projects, whether for or against.    
    Any actions coming from the NCIP, big or small, and either for and against, may erode the very foundation of FPIC. To do otherwise, will strip the IPs of their rights to self-determination. It would mean that the fate of the IPs’ over their ADs is already pre-determined and that their right to self-determination is just mere ink on paper.  
    Regrettably, this is the cold reality. The IPs, before the start of the FPIC are already indirectly pre-judged and prejudiced. They are expected to favorably consent to every proposed project being introduced to them. As if it would mean that the FPIC process, as a substantive right of the IPs, is being reduced as a mere procedural checklist awaiting compliance.
    And with this type of mindset, it invites corporations to cut-corners and encourages NCIP to a quick-fix while incidentally undermining the IPs’ right to Self-Determination.  
    It should be borne in mind that IPs was accorded by law to determine and define what is development or progress for them. Their definition to such, though may irate the five senses, must be respected. It is wrong to judge their definition or determination of development using the lens that is foreign to them. Your understanding of development and progress might be a means of destruction or can be construed as form of aggression to them.
    However, notwithstanding the personal views of every NCIP personnel, it should be a warning to them that non-adherence to the FPIC process and disrespect to the IPs’ right to self-determination leave them susceptible to legal charges.
    The strict adherence to the rules and prevailing laws of FPIC by NCIP personnel will serve as protection against legal cases in the future. Should there be succeeding cases filed, NCIP personnel will be judged by the courts, not because their personal views, either for or against a project, rather justice will be weighed answering the question: whether or not said NCIP personnel, in the performance of his/her duties, followed and complied with the FPIC process and respected the IPs’ right to Self-Determination as required by law.  
    Time and again we witnessed IPs filing legal charges against NCIP personnel due to the latter’s non-adherence to prevailing laws and guidelines. One famous case lodged before our courts, is the irregular conduct of the FPIC process in the infamous Gened 1 and 2 mega dams.
    IPs cry foul due to the use of seemingly forged signatures giving authority to a few to sign a memorandum of agreement and resolution of consent, while those who facilitated the FPIC process argue regularity and that complainants are influenced and anti-development.

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Electricity, the business and the IPs

IP Talk

Rocky Ngalob

“Pagan-ano mi eti kuryente
Noh awan masilawan
A makan ti lamisaan
Ay ay..”
(From the song Pagasarmingan by Salidummay)

It has long plague the Indigenous Peoples’ (IPs) psyche the myth that the host communities will enjoy free electricity should they consent to Hydroelectric Power Projects (HEPPs) within their respective Ancestral Domains (ADs). It has conditioned the minds of both IPs and non-IPs the notion that those who withhold their consent or those who campaign for rejection of HEPPs, within the IPs’ context of sustainable resource management, are either anti-development, anti-government or belonging to subversive groups.
    This myth has created a dichotomy within the once united and undivided IP community. It created two feuding groups - the “pros” and the “antis”. This polarization of the IP Communities are commonly exhibited during the conduct of the Free Prior and Informed Consent (FPIC) processes for Hydroelectric Power Projects (HEPPs). Habitually, pushing the IP communities to deviate from their centuries-old customary decision-making process from a once collective and communal consensus into divisive decision pitting the majority versus the minority via the foreign concept of election process.
    The spirit of genuine FPIC of IPs demands not only correct information but also substantial and useful facts. And through FPIC, the IPs must be equipped with the knowledge on how the nation’s electric power industry work before they enter into consensus-building and decision-making.
    The genealogy of the nation’s thrust in the electric industry was a rapid evolution; from once a form of basic service duly disposed by government for the enjoyment of the populace, towards an object of commodity susceptible for commerce profited by the selected few. This evolution is clearly seen through past experiences of the Ibaloy IPs of Itogon and Bokod.
    The sacrifices of IPs for nation’s development
    In the 1950’s, just right after the World War II, the Philippine Government, through the National Power Corporation (NPC), acquired the private properties of IPs dwelling in both Itogon and Bokod. Said acquisition of properties, by operation of imminent domain, paved way for the construction of Ambuclao and Binga dams.
    The IPs, mostly the Ibaloy, were forced surrender their homes, burial grounds, farm and pasture lands to the Philippine Government to give way for national development. IPs in the Bokod and Itogon paid the ultimate sacrifice and were boxed-out from their Ancestral Lands wherein most of them ended-up in Nueva Viscaya up to Palawan.
    While the nation enjoyed the bounties of the sacrifices of the IPs with their Ancestral Lands in the form of electricity, the IPs on the other hand, were ditched with only their clothes on their backs. They left to fend for themselves. No free electricity was ever granted unto them, and if there were any, such were just merely crumbs from the pie.
    Power Generation and Transmission then were centered to the Government, while the distribution of the same were lodged to electric cooperatives.          
    Fast tract to 2001, the infamous Electric Power Industry Reform Act (EPIRA) was enacted into law. It created the Power Sector Assets and Liabilities Management Corporation (PSALM) and was tasked to privatize NPC’s assets thru an auction. Around 19 HEPPs acquired by the government under NPC nationwide were placed for bidding. Among them were the Ambuclao and Binga Hydroelectric Power Mega Dams. As a result, a private corporation won the public bidding and acceded in the rehabilitation for both mega dams. From then on, private corporations assumed the functions of power generation and transmission while power distribution was lodged to electric cooperatives. .
    Needless to state, the IPs of Itogon and Bokod, despite their sacrifices for national development, were treated as mere spectators as they helplessly witnessed their contributions being transferred to a private corporation. Even more, no free electricity was enjoyed nor granted to them. Till this day, IPs of Itogon and Bokod still pay for their electricity thru BENECO as the electric distributor. Worse, neither the mega dams does not supply the residents of Itogon and Bokod with the needed electricity nor do they supply BENECO the same to be distributed for the IPs of Benguet. 
    The electricity business and IP resources as currency
It had to be said, whoever told you that electricity will be free as the price of a favorable FPIC is your own robber, swindler and enemy. Advent the EPIRA law, corporations are directed to trade their generated electricity to a centralized spot market dubbed as the Wholesale Electricity Spot Market (WESM) governed by a private entity - Philippine Electricity Market Corporation (PEMC). For better elucidation for the IPs of Benguet, WESM is akin or best illustrated as the “vegetable trading-post” where most of the generated electricity are sold to traders/middlemen for re-selling. Simply put, it is the centralized market where electric cooperatives and corporations buy electricity to be distributed to residential houses and business establishments. From this set-up alone, it can be surmised that free electricity in exchange for the favorable consent of the IP host communities is an anomaly.
    Unless, the IP community have managed to negotiate such terms in a Memorandum of Agreement (MOA) and the same was conformed to by the energy corporation. Quite ideal but still a far stretch from reality considering the capitalist nature of energy corporations. Lest we start convincing corporations to start hating money.  
    Inside a capitalist empire of energy corporations, the IPs renewable energy resources like water and geothermal found within the Ancestral Domains, is the empire’s currency. Energy corporations after securing the Hydro Service Contracts (HSC) and once gaining exclusivity over renewable energy resources from the Department of Energy (DOE), sometimes appropriate the same thru sale to other energy corporations. And as icing on the cake, sellers acting as middlemen, may throw in the FPIC of the IPs and Certification Precondition. 
Apart from the EPIRA law, there are other policies enacted serving the business characteristic of the renewable energy industry of the Philippines. Like for example, the Executive Order 30 S 2017 which created a committee that grants certification to energy corporations as “energy projects of national significance” which entitled them with the privilege of “presumption prior approvals”. Said certification serves as a hall-pass ticket for energy corporations to enter the IPs’ Ancestral Domains.
    Let’s not forget Republic Act No. 11234 otherwise known as “An Act Establishing the Energy Virtual One-Stop Shop for the Purpose of Streamlining the Permitting Process of Power Generation, Transmission and Distribution Projects” or EVOSS. A law that prescribed 105 days for the completion of the IPs’ FPIC, and that non-compliance to the same would yield “deem approval” of the proposed HEPP. 
    Glaringly, it is seen that the battleground for the renewable energy resources is not fought between IPs and corporations at the ground level but between and among energy corporations at the top level. By the time that project reaches the IPs for the mandatory conduct of FPIC, deals were already sealed. Fortunately, with an empowered IP community, some deals are foiled which may lead to rejection. These instances however are few and far in between considering the misplaced notion that acts of rejection may be construed as anti-development or subversive.
    Only if the IPs are free from reprisals or prejudices of being branded as anti-development, that they can genuinely dispose of their consent.    
    Fairly, we can’t blame the IPs if they reject hydropower corporations wooing them through the FPIC process.  The experiences of IPs in Itogon and Bokod are glaring tell-tale signs of what awaits their Ancestral Domains and lands. To tag them as “anti-development or progress” is unfair, for they have already sacrificed much for national interest. The fact that IPs are expressing their rejection within the bounds of law rather than resorting to revenge over their ancestral lands and resources that were once grabbed from them is a clear staple of their civilized action despite the intolerable injustices inflicted unto them. 

 

 

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IP-Community participation is the heart of FPIC

 IP CONCERNS

 Rocky Ngalob

LA TRINIDAD, Benguet -- It has been long-settled that the FPIC process, by the spirit of the Indigenous Peoples Rights Act or IPRA, is community-centered undertaking. Apart from procedural in form, it is a substantive right due to the Indigenous Cultural Communities / Indigenous Peoples (ICCs/IPs) as an expression of their right to Self-Determination and that only through religious compliance to the FPIC process, that such expression can be achieved.
    IPRA has recognized and accorded all ICCs/IPs their rights to FPIC process. And as a yardstick for such process, the National Commission on Indigenous Peoples (NCIP), the main agency created by IPRA to implement the spirit of FPIC, has promulgated a guidelines to serve as rules in its execution. Said guidelines is a product of series of enhancements and amendments starting from 2002 to 2006, then to the prevailing FPIC Guidelines of 2012. It is a continuous enhancement. Each amendments leading to the 2012 guidelines were corrections from the wrongs from its baby years. And by looking at its genealogy, it portrays how the past 2002 and 2006 led to the fortification of the IP community participation in the FPIC process enshrined in the prevailing guidelines.
    In general, both 2002 and 2006 FPIC guidelines were seen as divisive. It is divisive since it only focuses on the directly affected areas as the main actor in giving or withholding consent for either intrusive or non-intrusive projects. Community participation is limited only to those who are physically impacted while setting-aside neighboring portions even if the latter are culturally attached to the area as one Ancestral Domain (AD). 
One Ancestral Domain, One unit
As a cure to the wrongs ofth previous guidelines, the NCIP Commission En Banc (CEB) through the Chairmanship of Zenaida Hamada-Pawid, ratified the 2012 FPIC guidelines that encourages more on community participation as one AD and one single unit. Here, directly or impact areas are now focused on the entirety of the AD and not only portions thereof.
    This enhancement in the 2012 FPIC guidelines significantly cured the divisiveness nature of the previous guidelines in the implementation of the FPIC process. The guidelines advocated, as it should be, the IP community or AD participation in the whole conduct of the FPIC process. The same guidelines also gave power and premium to the IP community in their collective decision-making and restricted the monopoly authority to individuals.
    In its salient provisions, the 2012 FPIC Guidelines expressly stipulated that “…an Ancestral Domain shall be recognized and treated as one or undivided unit”. The provision opened the door to all IPs dwelling within an AD, as one single unit, to participate in the FPIC process. No longer will the AD be again be divided between the directly affected from the less-affected.
In practice however, this is not absolute. The community, if they so choose and decide, may give premium to the directly affected barangay or sitio within their AD in the decision-making. This exemption can only be done however through customary collective decision-making of the AD deciding as one single voice.
Power to the IP Community 
Other salient provisions of the FPIC Guidelines fortified the power of the community to validate and/or affirm any agreements that will affect not only the FPIC process but the AD as well. They hold the power to validated and affirm the FPIC decision-making process including the naming and giving of authorization to their list of elder/leaders as their juridical person in the FPIC process. Notwithstanding the chosen elders/leaders, it is the IP community who commands the limitation in giving authority to the same, as their juridical person, such as in negotiations and signing of the Memorandum of Agreement (MOA).
Authority to negotiate and sign the MOA given to their juridical person, as stipulated in the FPIC guidelines in between community assemblies and consensus-building / decision-making stage, is suspended until the IP community is ready to dispose their decision. Only when the IP community is ready that the chosen elders/leaders, as the community’s juridical person, can partake in the FPIC process. It is the elders/leaders, as stated in the FPIC guidelines, who will communicate to the NCIP of the consensus of the IP community. Needles to state, they are the mouthpiece of the IP Community.
    It should be noted that, traditional elders/leaders are different and must not be confused with the authorized or chosen elders/leaders. The latter is just the juridical person or representative of the AD. These authorized elders/leaders are the mere creation of the traditional elders/leaders together with their fellow AD holders acting as one. A clear illustration would be the group-reporter reporting in behalf of his groupmates in every typical classroom group-work activities.         
    Should there be favorable consent from the IP community, the elders/leaders may be authorized to play the role as negotiators. Any negotiated terms and conditions between the negotiators and proponent will be reduced into writing as the draft MOA. Though the elders/leaders may have acquired authority to sign MOA, they are however barred from signing the same without first the appropriate validation and affirmation of the contents of the draft agreement by the IP community. This clearly stated in the FPIC guidelines requiring the draft MOA particularly the contents thereof to be first read in full, aloud and explained by the NCIP to be understood then affirmed by the community. Should there be need for any change/s as seen appropriate by the IP community, the NCIP shall make the appropriate revision or amendment to the satisfaction of the community. All of these must be done through a community assembly within the affected AD.   
    The IP Community Participation still does not end there. Even after the culmination of the FPIC and the Certification Precondition (CP) is already issued, the IP community’s participation still not divorced. This because the IP community plays a very important role in the crafting of the Community Royalty Development Plan (CRDP), which would in turn, will be the basis for the implementation of the royalty shares and other benefits.   
Heart of the FPIC   
Time and again we witnessed problems concerning the FPIC process. A lot are rooted when the IPs and/or some of their community members are boxed out in participating in the process due to differences. In fine, there will always be an adverse and conflicting opinions from the IP Community. But sure enough, said conflicting views the sole purpose why the consensus-building stage of the FPIC process was expressly emplaced. This stage of the process cannot be rushed nor can be given a time-period.
    The existence of conflicting views is the perfect environment where a true IP elder/leaders is tested. An IP elder/leader who embraces intrusive projects which may adversely affect the community in the name of an outsider’s concept of progress, is no less than the IP elder/leader who opposes the same all because of sustainable community-centered development. However, to see both IP elders/leaders with clashing views open their opinions for deliberation between among their fellow IP community members towards achieving a consensus decision, as one single unit, would be a joy for the rest of us to behold. Obviously, a true IP elder/leaders mirrors the IP community’s interest and not his own personal whims.
    It must be understood that it is the IP community, comprising the traditional elders/leaders along with their fellow AD holders, as one single unit, who holds the sole authority to seat at the driver’s chair and stir the wheel that carts the collective decision of the AD. Non-recognition of this process and the paramount value weight of the community’s full-participation in the decision-making and FPIC process will be the undoing of an elder/leader.
    Undoubtedly then, full IP community participation is what makes the FPIC process tick and whole. Without it, and once broken, even with all the king’s men and army of lawyers, no amount of post Unilateral Affidavit of Undertaken can stitch back Humpty-Dumpty back whole again. //Rocky Ngalob

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FPIC etiquette on IKSP

INDIGENOUS PEOPLE’S CONCERNS

Rocky Ngalob

For the benefit of the private and government researchers, members of the academe, students and artists, here is a brief discussion on the policies and regulations governing documentation and utilization of Indigenous Knowledge Systems and Practices (IKSPs) and Customary Laws. 

While it is self-explanatory, IKSP is defined by a prevailing National Commission on Indigenous Peoples (NCIP) Administrative Order No. 1 series of 2012 as; “…systems, institutions, mechanisms, and technologies comprising a unique body of knowledge evolved through time that embody patterns of relationships between and among peoples and between peoples, their lands and resource environment, including such spheres of relationships which may include social, political, cultural, economic, religious spheres, and which are the direct outcome of the indigenous peoples, responses to certain needs consisting of adaptive mechanisms which have allowed indigenous peoples to survive and thrive within their given socio-cultural and biophysical conditions.”

If these IKSPs entail documentation and/or utilization of the same other than what it is intended purpose, may it be, for public consumption and for commerce, it requires Free Prior and Informed Consent (FPIC). The requirement of FPIC is anchored on the basis of social justice wherein IPs, as the owners of IKSP, are entitled to be first informed of the documentation and utilization of their property (IKSP), and to give consent on whether to agree and/or reject the intended purpose of the IKSP.         

IPs are the collective owners of IKSP

We should look at IKSP as the collective property of the IPs. In fact, this collective ownership of the IKSP by the IPs was underscored in the operating principles of NCIP AO 1 S 2012. It mentioned that the author, composer, inventor, writer, choreographer, arranger, lyricist, owner, first user, or preacher is not one individual but all the members of the community who belong to the past, present and future generations.

If IKSP is collective ownership, the better part of prudence is to consult the IPs in their collective person as single unit.

Yes, this is a little bit tedious and burdensome wherein it presupposes the conduct of consultations involving the entirety of IPs dwelling inside an Ancestral Domain. But of course this is the least of one’s concern if the same had a deeper appreciation of the wisdom behind the IP culture of collective ownership.

This is grounded on the recognition that IKSPs of the IPs exist till this day because it is they [IPs], in their collective efforts, who have protected and nurtured the same despite centuries of subjugation. 

In fact, the very reason it is called IKSP is mainly because customs, knowledge, traditions which were being enjoyed and practiced during the pre-conquest era of the Philippines were warded off collectively by the IPs, from the drastic changes from the popular and dominant culture introduced by our colonizers. 

With that in mind, due FPIC is needed even if the one who will be documenting and utilizing the IKSP belongs or traces his/her roots to the IPs owning the same. Why? Well, because as discussed earlier, IKSPs are collectively owned. He/She, as a single individual, is just a part of the whole IKSP ownership.

Tedious and costly

For everybody’s information, FPIC process being facilitated by the NCIP, has no budget allocation from the national government. This is why all expenses incidental to the conduct of the FPIC process are all being shouldered by the researcher. In effect, it is the researcher who will be paying for the food and transportation of the IP community elders/leaders and members who will attend meetings, conferences and other activities for the satisfaction of the FPIC. All other expenses incidental to the FPIC process will likewise be borne to the researcher.

The only payment that will be paid to NCIP is the filing fee of 500 pesos which will be directly transmitted to the National Treasury.

On the curious case of Whang-od relative to New ErIt is without any shade of doubt that the Kalinga Battok (Wha’tok) is classified as IKSP. Therefore, any move for its utilization beyond its traditional purpose; say for example, documentation, and/or appropriation for commerce, requires FPIC.

With that being said, one must first determine the owner of the IKSP. It is the owner who will be giving consent thereof. As a general rule, ownership of IKSPs is lodged to the Community wherein as a collective body, they will decide whether or not they would allow or reject the utilization of the IKSP by a party for purposes outside its traditional intent.

Whang-od, as a single individual, cannot give consent in favor to another party for the utilization of IKSP Battok considering that most of the designs therein are traditional. It is a different story however if those designs were originally conceptualized and/or crafted by her, wherein Whang-od may enjoy and hold ownership thereof. A better illustration of this is the Cordillera Weaving industry.

Narda’s Weaving cannot be compelled to undertake FPIC for the purpose of securing consent from the community. This because, Narda’s Weaving designs were originally conceptualized and crafted by Narda herself.

Narda’s Weaving acquired inspiration from the traditional Cordillera designs but made a different design which is original to Narda’s Weaving. 

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