An assessment of the implementation of the Free and Prior Informed Consent (FPIC) in the Philippines : Main Report

This study seeks to address the lack of an evidence-based assessment and evaluation of the FPIC implementation in the country while providing insights into community notions of consent as well as policy recommendations for the enhancement of the FPIC process.

 

The objective of the study is to (1) assess the implementation of the FPIC provisions as an effective safeguard for IPs to assert their right to self-determination; (2) determine the definition of consent in affected communities; and (3) develop policy-related recommendations for enhancing the FPIC process in the Philippines, which can be helpful in the context of climate-relevant forest policies and their implementation. 

 

The evaluation of FPIC implementation was carried out through an actual review of 34 real FPIC cases. A random election of case studies was conducted in three clusters that represent different geographical regions, Luzon (n = 20), Visayas (n = 2) and Mindanao (n = 12). Aside from a geographic sampling, the cases also covered the range of projects for which the FPIC is normally sought, mainly for extractive processes such as mining (n = 17) and energy-related activities (n = 5) as well as integrated forest management agreements (n = 5) and only limitedly to conservation/ reforestation projects (n = 2) and others (n = 5). In addition to the 30 sites selected from random sampling, four special cases, known for questionable FPIC processes, were chosen. Hence, the study covered a total sample size of 34 study sites.

 

The assessment of “FPIC implementation” refers to the substantial compliance with the principles enunciated in the Indigenous Peoples Rights Act (IPRA) as well as to the technical/procedural compliance with the legal requirements of the NCIP’s 2002 and 2006 FPIC Guidelines, which include, among others, the conduct of the field-based investigation (FBI); other pre-FPIC activities; FPIC mandatory activities; and post-FPIC activities, including the signing and implementation of the Memorandum of Agreement (MOA). 

 

The study finds that no more than 50% of the studied cases attained the status of full and faithful compliance with the FPIC Guidelines and procedures. Although a considerable number of cases reported “no violations” in the fieldbased investigation stage (44.1%), there was a substantial number of cases that reported incidents of violations during the actual conduct of the FPIC (38.2%), as well as during the conduct of the MOA signing and post-FPIC activities (29.4%), which are the phases where the more substantial aspects of the FPIC are deliberated and ultimately settled. 

 

The widespread negative perception about the FPIC is related to the non-implementation of agreed upon or promised benefits (80% of the violators were allegedly responsible for this). With regard to the substantial compliance with the principles of FPIC, a considerable number (35.3%) of the case reports claim that the consent of the communities was freely given, although this does not account for half of the reports. More case studies (38.2%) report that the consent was given by IPs without sufficient information to arrive at a well-informed decision. In addition, a considerable number of FPIC applicants deliberately highlighted the material benefits that would be derived from the project while glossing over negative social and environmental impacts of the projects.

 

The analysis of the community notion of consent reveals that although there are culture-based and site-specific customary practices of giving consent, the modern and liberal concept of “majority rule” (50+1) has become widely utilized by IP communities. This shows that customary beliefs and practices have undergone changes through the process of accommodation and adaptation of non-indigenous practices by the IPs themselves.