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Free and prior informed consent in the Philippines

The National Commission on Indigenous Peoples (NCIP) recently promulgated the Revised Guidelines on the Exercise of Free and Prior Informed Consent (FPIC) and Related Processes (NCIP Administrative Order No 3, series of 2012), which repealed The Free and Prior Informed Consent Guidelines of 2006.

It is the policy of the State that no concession, licence, permit or lease, production-sharing agreement, or other undertaking affecting ancestral domains will be granted or renewed without going through the process laid down by law and the Revised Guidelines. For plans, project, programmes or activities requiring FPIC, an application for a certification precondition, the certificate issued by the NCIP attesting to the grant of FPIC, must be endorsed by the appropriate regulatory agency or unit of government to the relevant NCIP Regional Office.

The field-based investigation team conducts the field-based investigation. Should it be apparent from the investigation that an ancestral domain will be affected by the proposed project, the FPIC team will be mobilised. When the area is patently and publicly known to be outside any ancestral domain, or the activity is determined after field-based investigation not to affect an ancestral domain, a certificate of non-overlap will be issued.

The Revised Guidelines list the type of plans, projects, programmes and activities which are considered large scale/extractive/intrusive, and should thereby undergo a FPIC process involving two community assemblies and a consensus-building period. If the indigenous cultural communities/indigenous peoples' consensus is favourable to the proponent, the parties can negotiate and enter into a memorandum of agreement. If the consensus is not favourable, a resolution of non-consent will be given.

The FPIC process for plans, projects, programmes and activities that are considered non-extractive/small-scale involves negotiation between the community and the applicant, facilitated by the FPIC team. If the consensus is against the project, a resolution of non-consent will be issued. If the consensus is favourable, a certification precondition will be issued.

It should be noted that the Revised Guidelines provide that, unless specifically stated in the memorandum of agreement, there must be a separate exercise of the right to FPIC for each main phase of the proposed activity, such as exploration, operation or development, contraction of operator, and the like.

The consent of the indigenous cultural communities/indigenous peoples to a particular proposal is not transferable, except in the case of merger, reorganisation, transfer of rights, acquisition by another entity, or joint venture, to any other party.

Marie Corinne T Balbido

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