Indigenous cultural communities and indigenous peoples (ICCs/IPs) manage around 8.2 million1

hectares of forest lands in the Philippines. These ancestral domains represent around 52% of the forest lands and a significant portion of the remaining forested areas in the country. These are resource-rich areas, which attract projects and programs from various sectors for the development and utilization of natural resources found therein.

At present, the most concrete and basic safeguard for the recognition and protection of IPs’ rights in the ancestral domain is the conduct of the Free and Prior Informed Consent (FPIC) process. This refers to the formal FPIC process facilitated by the National Commission on Indigenous Peoples (NCIP) or as pursued under the IPs’ own customary processes.

The Indigenous Peoples’ Rights Act (IPRA) of 1997 guarantees the right of the ICCs/IPs to freely

pursue their economic, social, and cultural economic development.2 FPIC operationalizes the constitutional recognition of the rights of ICCs/IPs over their ancestral domains and their right to decide priorities for their own development over lands they own, occupy, or use.

Under the IPRA, the ICCs’/IPs’ right to FPIC gives them the right to be consulted and for their consent to be secured before projects and programs are implemented in their domains. This extends to having the power to negotiate the terms of engagement and to veto certain projects. The 2012 FPIC Guidelines lay down a uniform and mandatory procedure to ensure these rights, and the actual decision-making process varies depending on the customary law of the concerned ICCs/IPs from whom consent is being sought for, whether the community decision is to be given by the elders/leaders or by the community members involved through household representation or otherwise. However, note that there are also ICCs/ IPs who have their own processes independent of the NCIP and that of the IPRA, or recognize only some provisions of the NCIP FPIC rules and of the IPRA. The case of Daraghuyan in Bukidnon featured in this report is an example.

The NCIP is the national government agency created under the IPRA with the primary responsibility of ensuring that rights to land and resources within ancestral domains of the IPs are recognized and respected. In carrying out this mandate, the NCIP has an important role in ensuring that ancestral domains are demarcated and that IPs secure tenure within these

ancestral domains. In addition, NCIP has to ensure that any developments and projects to be implemented in the ancestral domain have complied with the FPIC requirements imposed on all proponents of the projects. The NCIP’s role in the process is to facilitate the process and validate on the ground whether or not there was indeed genuine consent that is free and prior informed. This presupposes that the community has complete information, including background information on the project and the company. This information must not only be complete but also accessible, and must be understood by the IP community.

In 2011–2012, the Non-Timber Forest Products- Exchange Programme, together with the Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH, and NCIP conducted a national assessment of the implementation of the FPIC in the Philippines. The assessment provided evidence-based recommendations for the improvement of the process, which were reflected in the revised FPIC Guidelines of 2012.

This report documents the FPIC processes in a number of projects on Community-Based Non-timber Enterprises (CBNEs), forest management systems like REDD-plus, and IPs and community conserved areas and ancestral domain titling. In sum, the reports showed that despite the high hopes that FPIC processes in these projects will be smoother and

predictable, it turned out to be more confusing and frustrating to community partners and proponents. It also exposed the lack of competency of some NCIP field officers to facilitate the process. In addition, lack of trust and confidence by the community to the NCIP has also surfaced during these FPIC processes. Amid these issues, there are ICCs/IPs, like the Daraghuyan-Bukidnon Tribe, that had remarkably shown the practice of seeking consent as embedded in their culture—a customary norm of consent seeking— prior to the legislation of the IPRA Law and before any NCIP-issued FPIC Guidelines.

For the communities undergoing FPIC in their CBNE and forest management projects, a series of FPIC policy discussions were held to address the confusion and disappointment, and involve everybody in the process. The policy discussions were held in the provinces of Quezon and Palawan, and then a national forum in Quezon City. The forums were venues to further distill the issues and bottlenecks encountered during the FPIC process and find ways to address issues, in implementation and in policy.

This report, which documented the experiences of seven projects, aimed to do a continuing assessment of the FPIC process as it is envisioned under the NCIP Guidelines and implemented on the field. This is offered as a contribution to the increasing literature on the implementation of FPIC in the Philippines to further improve its implementation.

During the “Securing Community Livelihoods and Forest Management Systems: Distilling FPIC Experiences, Sharing Lessons Learned” national conference held on June 24, 2015 in Quezon City, the key findings and recommendations found in this report were shared and enhanced:

• NCIP Administrative Order (AO) No. 3, s. 2012, classifies livelihood and forest management systems under Non-Extractive Small-Scale Activities (NESSA). Other guidelines apply such as NCIP AO No. 1 (indigenous knowledge systems and practices [IKSP]), AO No. 2 (indigenous political structure [IPS]), and AO No. 4 (CADT Delineation Process);
• Civil society organizations (CSOs) and/or assisting organizations follow the guidelines not only because it is required by law but also because they believe that FPIC is a strong social safeguard for ICCs/ IPs in deciding “yes” or “no” to a certain project;
• Undeniably, there are bottlenecks in securing Certification of Precondition under the FPIC
• process—these hinder the implementation of projects despite partner communities having already said “yes” or expressed intent to the project;
• Difficulties include lack of time lines, costs involved, lack of capacity of NCIP personnel to facilitate the process, and different interpretations of the guidelines (e.g. exercise of prior rights [EPR] vs. community solicited, IKSP vs. NESSA, etc.);

• ICCs/IPs are confused as to the reasons why they need to undergo FPIC process in their own domain;

• The declaration of EPR is a tedious and costly process for IP communities. More importantly, this process can be an instrument of abuse for them; and

• Finally, following the FPIC Revised Guidelines of 2012 (NCIP AO No. 3 and other relevant guidelines) does not guarantee the securing of culture-based

FPIC. Based on the above findings, key recommendations from the National FPIC Forum are the following:

1. Policy recommendations

• Forest conservation, environment-related projects, and basic services
• should fall under projects requiring validation. These, however, must be made
• with distinction from the corporate social responsibility initiatives of extractive
• industries;
• Revisit and simplify the process of declaration of EPR;
• Institute measure/s that define the time line for the steps of the process, and
• preparation and submission of reports, and install provision for sanctions;
• Provide standard costings for every step in the FPIC process; and
• Revisit the process of registration of IP organizations.

2. Operational recommendations

• Strengthen partnerships between NCIP and ICCs/IPs;
• Facilitate the process of IPS;
• There should be sufficient budget for NCIP to ensure delivery of services based on its mandate—CADT processing, facilitation of FPIC, support to proponent IPs, etc.;
• Adopt an operational policy within NCIP that will define and ensure building the capacity of NCIP personnel in the performance of their task and in the exercise of their duties in a competent manner;
• Popular information, education, and communication materials on the IPRA and the FPIC process should be made available to all ICCs/IPs; and
• Coordination of NCIP with the Department of Environment and Natural Resources, CSOs, and other agencies implementing forest conservation, environment-related projects, and basic delivery of services to ICCs/IPs through memorandum of agreement or working groups.