By SHERWIN DE VERA
When the regional director of the National Commission on Indigenous Peoples (NCIP) Cordillera confirmed that the commission en banc agreed to issue the Certification Precondition for the Chico River Pump Irrigation Project (CRPIP) despite the procedural breaches, we knew we had to get the viewpoint of someone who is knowledgeable of the workings of the commission.
So, on a cold and rainy May afternoon, Nordis had the opportunity to interview Zenaida Brigida H. Pawid in one of the cafes in the city. Her term is notable for creating NCIP Administrative Order No. 3 Series of 2012 or the Revised FPIC Guidelines, the one presently used by the office.
Over a cup of coffee and camote (sweet potato) bread, the former chair of the NCIP passionately shared her thoughts on why issues on the FPIC like those hounding the office on its handling of the CRPIP are bound to happen.
Flagship project plagued with controversies
The CRPIP is a flagship project of the Duterte administration. With a budget of P4.37 billion, the funds for the facility mostly came from a China loan. It will irrigate a total of 8,700 hectares with 4,350 beneficiaries. The allocations of the serviceable areas are as follows: Tuao with 7,150 hectares and Piat with 380 hectares, these are both municipalities of Cagayan, and 1,170 hectares in Pinukpuk, Kalinga.
When completed, the proponents projected an increase in harvest from 31,281 metric tons of palay to 87,000 MT annual production. The construction of the facility also opens employment opportunities for 14,784 individuals during the project implementation and 8,700 persons when the project is operational.
According to Federico Ordinario, Jr. of the National Irrigation Administration (NIA) Region 2, they received the order to proceed with the project in September last year and started implementing in December. The target completion of the project is in September 2021. As of May 7 this year, NIA Region 2 reported that implementation of the contract for the project is already 23.53 percent.
Promising as it may for Northern Luzon agriculture, the project is plagued with legal questions on its implications to Philippine sovereignty and patrimony, and protests for indigenous peoples’ rights violations.
The Makabayan bloc led by Atty. Neri Colmenares filed a petition before the Supreme Court challenging the Constitutionality of the loan agreement with China that contains a provision on turning patrimonial assets to collateral for unpaid obligations.
Also questioned in the petition are the confidentiality clause and the preference for a Chinese arbitration tribunal to settle disputes. The petitioners also said that the Monetary Board approved the agreement after the fact and awarded to a Chinese construction firm without the bidding. The state-controlled China CAMC Engineering Co., Ltd. took the project contract.
Meanwhile, the Cordillera Peoples Alliance (CPA) leads the protests on the ground for the violations committed by the National Irrigation Administration (NIA) in the free, prior and informed (FPIC) consent process and the lackluster response of NCIP.
The NCIP, in a letter dated May 3, said that NIA violated the FPIC procedure when it started its earthmoving and construction activities even before the issuance of the Certification Precondition. Both the NCIP legal office and Commissioner Gaspar Cayat affirmed this on May 7 during the Regional Development Council Cordillera joint meeting of the Committees for Indigenous Peoples Concerns and the Infrastructure Development.
According to Windel Bolinget, CPA chairperson, they are protesting the FPIC process because: (1) NIA and the NCIP failed to divulge the details of the loan agreement to the concerned communities and (2) NCIP failed to cancel the FPIC process and stop the construction activities when NIA proceeded with its construction without completing the process. For the group, if allowed to go unnoticed, others may eventually exploit these “dangerous and catastrophic precedents”.
A commission of political appointees
Pawid started her narratives by presenting the structure and process by which the NCIP operates.
“In a sense, the NCIP was never allowed to exercise its commission functions as a commission because as a commission it should be directly responsible to the president,” she explained.
However, she said that since its establishment, the commission transferred from one department to another.
The Republic Act No. 8371 or the Indigenous Peoples Rights Act (IPRA) provided the creation of the NCIP. Rule VII Part II of Administrative Order No. 1-1998 or the Implementing Rules and Regulations (IRR) of the law states that “it shall be an independent agency under the Office of the President” with “lateral but autonomous relationship for purposes of policy and program coordination.”
But since no cabinet position rank was assigned to the office, the oversight task was relegated to the different departments. Through the years, the NCIP transferred from the Department of Agrarian Reform and the Department of Environment and Natural Resources. Under the Aquino III administration, the president transferred the office under the Office of the Presidential but gave the oversight task to Presidential Adviser on the Peace Process Teresita Quintos-Deles.
Pawid clarified that while they served in fixed term, they primarily occupy the office under the trust and pleasure of Malacañang.
She also explained that as a collegial body, the chair has no power other than those given by the commission composed of seven members where the minority concedes to the majority but allowed to express their dissenting opinions.
According to the IRR, the president assigns the commissioners and from among them designates the chairperson. The commission is required to have at least two lawyers and two women members.
The IRR, under Rule VII, Part III Section 5 states that the commissioners will serve the office for a period of three years and reappointed only once. It also indicated that no members of the commission shall occupy the office beyond six consecutive years and “in no case shall a member be appointed or designated in a temporary or acting capacity.”
At present, most members of the commission are on “holdover capacity” with only two members receiving fresh appointments from the president. These are Gaspar Cayat for Regions 1 and Cordillera, and retired military Allen Capuyan for Davao and Caraga regions. The president also designated the latter to chair the commission.
Unprepared for IPRA
The former NCIP chair said that problems on the FPIC process are not only arising with the CRPIP but also with other projects in indigenous peoples’ lands.
Pawid recalled how they tried to exert every effort to exercise the independence and prerogative of the commission but in the end, she came to realize that the office is bound to encounter difficulties. Mainly, from the complexities of the bureaucracy and the extent to which the people in the agency are willing to go to defend indigenous peoples’ rights.
She also thinks that the office was “unprepared in implementing IPRA and the FPIC the way it should be.” According to her, other than the lack of technical and legal skills, many in the office “are also not willing to take the side of the people.”
“You are up against the entire bureaucracy and the outside,” she added.
She expressed disapproval of the fact that the proponents pay for the entire FPIC process, as provided in the guidelines. For her, these give the investors additional advantage besides already having well-oiled machinery.
Under Rule IV Part III Section 6 of the IRR, it is the obligation of project proponent to “underwrite all expenses attendant to securing the free and prior informed consent.”
The former chair underscored that a prepared NCIP should have a clear understanding of what the project is all about before the FPIC starts. This is to allow it to effectively facilitate the conduct of the process and ensure the observance of the principle of transparency and clarity.
Also, before any process of the FPIC can continue, the commission should have made sure that the proponent complied with the documentary and procedural requirements contained in the guidelines.
Pawid explained that problem also arises in government-initiated or funded projects because the lead offices tend to assert the legality of the process and the phasing of work based on their operational procedures and not on the merit or recognition of IPRA.
The bottom line
Pawid said that it all boils down to the questions: “How serious are we to implement the [Indigenous Peoples Rights Act (IPRA)]? Do we really understand the law? And if we do, are we ready to fight for it?
While the former chair directed the question to nobody in particular, the NCIP being the office mandated to ensure the implementation of the law is the one that should really reflect on these queries and provide an honest response. Especially since there are groups raising questions on how the office handled the FPIC process for the CRPIP and the breaches made by the proponent and contractor to the guidelines set by the very same office.
The fact that the NCIP is ran by a commission composed of political appointees also casts doubts to their independence from the influence of the appointing official or the one having the oversight.
In the case of CRPIP, the decision to give the Certification Precondition despite the violations committed heightened the pre-existing misgivings to the impartiality of the office, especially on government-initiated projects.
Pronouncements and actions of the NCIP after CPA raised the violations reinforced these doubts. For example, NCIP Cordillera chief Roland Calde admitted that if a private company committed the same procedural breaches made by NIA, NCIP would have ordered it to halt its activities. There are also the RDC joint committee meeting that sought to remedy the violation of NIA and the commitment made by NCIP officials during the same meeting to fast track the process and issuance of the Certification Condition.
As to NCIP being unprepared, its lack of knowledge on the mechanics of the loan agreement for the project, which affects matters covered in the agreement with the domain holders such as employment, says it all. More than this, the CRPIP controversy showed the lack of readiness of those staffing the bureaucracy to uphold their mandate and stick with their guidelines against government institutions violating it.
There are also signs that the office had apparently overlooked technical and legal matters in the guidelines. For one, the FPIC process started on March 31, 2017. However, NIA, through a commissioned consultant, conducted the environmental impact assessment in February 2018.
Under Section 21 (Pre-FPIC Conference) of the Revised FPIC requires the applicant (in this case, its NIA) to submit “Environmental and Socio-cultural Impact Statement, detailing all the possible impact of the plan, program, project or activity upon the ecological, economic, social and cultural aspect of the community as a whole. Such document shall clearly indicate how adverse effects may be avoided, mitigated and/or addressed.”
These are why the agency cannot simply wash its hands and direct all the faults to NIA. The task of reminding the office implementing the project to abide by the procedures falls on the clutches of the NCIP nor can it blame the community for asking the fast-tracking of the project. It is the NIA and the NCIP, as government offices that are liable for procedural breaches and should be wary of immediate harms and problematic precedents these transgressions may cause.
The NCIP could and should have risen beyond it being a commission of political appointees and an office unprepared for a huge task in handling the CRPIP hullabaloo; it chose to forego that opportunity. With this came the affirmation that the fight for recognition of the right to self-determination and the assertion for genuine FPIC lay on the might of the peoples’ movement. # nordis.net