The Dynamics between the IPRA and

th Mi
the
Mining
i A
Actt
Mining Philippines 2011 Conference and Exhibition
Sofitel Philippine Plaza
Manila, Philippines

Atty. Dennis A. Quintero

Partner, Quisumbing
g Torres
Member Firm of Baker & McKenzie International

Outline
I.
II.
III.
IV.
V
V.
VI.
VII.
VIII.

Philippine Legal Framework

Concept
Co
cept of
o Native
at e Title
te
Timeline for Native Title Acquisition
Obtaining Free and Prior Informed Consent
E
Exercise
i off Priority
P i it Ri
Rights
ht
Process of Delineation of Native Title
2010 Regulations on Tenement Reforms
Dealing with Some Practical Issues

I. Philippine Legal Framework

A.

Philippine Constitution (1987)

1.

Article XII, Section 2: All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned by the
State With the exception of agricultural lands
State.
lands, all other natural resources shall not
be alienated. The State may directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing agreements xxx

2.

Article XII, Section 5: The State, subject to the provisions of this Constitution and
national development policies and programs, shall protect the rights of indigenous
cultural communities to their ancestral lands to ensure their economic, social, and
cultural well-being.
The Congress may provide for the applicability of customary laws governing
property rights or relations in determining the ownership and extent of ancestral
d
domain.
i
4

I. Philippine Legal Framework

B. Mining Act (1995)
1.

Section 4: Mineral resources are owned by the State and the exploration,
development, utilization, and processing thereof shall be under its full
control and supervision. The State may directly undertake such activities
or it may enter into mineral agreements with contractors.

2
2.

Section 16: No
No ancestral land shall be opened for mining operations
without the prior consent of the indigenous cultural community concerned.

I. Philippine Legal Framework (contd.)

C. Indigenous Peoples Rights Act (IPRA) (1997)
1.

Section 3(g) - Free and Prior Informed Consent shall mean the
consensus of all members of the ICCs/IPs to be determined in accordance
with their respective customary laws and practices, free from any external
manipulation, interference and coercion, and obtained after fully disclosing
the intent and scope of the activity, in a language and process
understandable to the communityy

I. Philippine Legal Framework (contd.)

C. Indigenous Peoples Rights Act (IPRA) (1997) (contd.)
2.

Section 59: All departments and other governmental agencies shall

henceforth be strictly enjoined from issuing, renewing, or granting any
concession, license or lease, or entering into any production-sharing
production sharing
agreement, without prior certification from the NCIP that the area affected
does not overlap with any ancestral domain. xxx
Provided, further, that no department, government agency or governmentowned or -controlled corporation may issue new concession, license,
lease or production sharing agreement while there is a pending
lease,
application for a CADT: Provided, finally, that the ICCs/IPs shall have the
right to stop or suspend, in accordance with this Act, any project that has
not satisfied the requirement of this consultation process
process.
7

EP Process Flowchart
FILING IN MGB REGIONAL OFFICE
(Submission of MGB Form No. 05-1 and 5 sets of mandatory requirements and payment of filing)

PRELIMINARY EVALUATION
DOCUMENT EVALUATION

PLOTTING

AREA STATUS AND CLEARANCE

NCIP CERTIFICATION
PUBLICATION, POSTING, RADIO ANNOUNCEMENT AND
SECURING OF CERTIFICATIONS OF PUBLICATIONS, ETC

CERTIFICATION OF PANEL OF ARBITRATORS CONCERNED

INITIAL EVALUATION

ENDORSEMENT TO MGB CENTRAL OFFICE

FINAL EVALUATION AND APPROVAL

NUMBERING, REGISTRATION AND RELEASING BY MGB REGIONAL OFFICE

IPs Free and Prior Informed Consent process

flowchart
Special FPIC process requires 47 days
Endorses request for CP attached
with required documents

Regular FPIC process requires 90 days

RD determines overlap (3 days)

Overlap
RD issues Cert. of

Receives copy of the CNO

Non-Overlap

NO

Proponent receives

RD notifies the proponent to

attend Pre-FBI Conference
( tifi ti period
(notification
i d6d
days))

notification and confirms

attendance

Pre-FBI Conference
1 day
Conduct of FBI
(9 days)

YES

Pre-FPIC Conference
1 day

SPECIAL FPIC PROCESS

(20 days)

REGULAR FPIC PROCESS

(55 DAYS)

RD issues Cert. of Non-Consent

First Meeting
Consensus Bldg. & Decision Mtg

Project
Denied

MOA Execution & Signing

Notice Posting/Serving
RD evaluates & issues
C t off Compliance
Cert.
C
li
(7 days)

Project
Denied

C
Community
it A
Assembly
bl

Project Approval
Consensus Building
/Decision Meeting

Approvall off the

A
th
Commission & issuance of
the Cert. of Compliance
(8 days)

RD evaluates & endorses the

issuance of Cert. of Compliance
(7 days)

Project Approval
MOA Execution & Signing
9

I. Philippine Legal Framework (contd.)

D. Cruz vs. Secretary (2000)
1.

Petitioners asserted that provisions of the IPRA and its implementing rules
amounted to unlawful deprivation of the States ownership over lands of
the public domain, and deprivation of the States
State s ownership over minerals
resources.

2
2.

Seven members of the Supreme Court voted to dismiss the petition while
seven members voted to grant the petition. As a majority was not
obtained, even after re-deliberation, the petition questioning the IPRA was
dismissed.

10

D.

Cruz vs. Secretary (2000)

3
3.

In the separate opinion of Justice Panganiban

Panganiban, wherein he voted to
declare unconstitutional certain provisions of the IPRA, he rejected the
contention that ancestral lands and ancestral domains are not public
lands and have never been owned by the State
State. Such sweeping
statement places substantial portions of Philippine territory outside the
scope of the Philippine Constitution and beyond the collective reach of the
Filipino people. xxx these real properties constitute an third of the entire
Philippine territory; and the resources, 80 percent of the nations natural
wealth.

4.

In the separate opinion of Justice Kapunan, he was of the view that priority
rights (right of preference or first consideration in the award of privileges
provided by existing laws and regulations) in favor of the cultural minorities
are valid. However, he affirmed the states ownership of the natural
11
resources within ancestral domains/ancestral lands.

II. Concept of Native Title

A. Philippine doctrine and test under the IPRA
1.

Ancestral Domains refer to all areas generally belonging to ICCs/IPs

comprising lands, inland waters, coastal areas, and natural resources
therein, held under a claim of ownership, occupied or possessed by
ICCs/IPs by themselves or through their ancestors
ICCs/IPs,
ancestors, communally or
individually since time immemorial, continuously to the present except
when interrupted by war, force majeure or displacement by force, deceit,
stealth or as a consequence of government projects or any other voluntary
dealings entered into by government and private individuals/corporations
individuals/corporations,
and which are necessary to ensure their economic, social and cultural
welfare. It shall include ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable and
disposable or otherwise
otherwise, hunting grounds
grounds, burial grounds
grounds, worship areas
areas,
bodies of water, mineral and other natural resources, and lands which may
no longer be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional activities,
particularly
ti l l the
th home
h
ranges off ICCs/IPs
ICC /IP who
h are still
till nomadic
di and/or
d/
shifting cultivators.
12

II. Concept of Native Title (contd.)

A. Philippine doctrine and test under the IPRA
2.

Ancestral Lands refers to land occupied, possessed and utilized by

individuals, families and clans who are members of the ICCs/IPs since
time immemorial, by themselves or through their predecessors-in-interest,
under claims of individual or traditional group ownership, continuously, to
the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth, or as a consequence of government
projects and other voluntary dealings entered into by government and
private individuals/corporations, including, but not limited to, residential
lots, rice terraces or paddies, private forests, swidden farms and tree lots;

3.

Native Title refers to pre-conquest rights to lands and domains which, as

far back as memory reaches, have been held under a claim of private
ownership by ICCs/IPs, have never been public lands and are thus
indisputably presumed to have been held that way since before the
Spanish Conquest.

13

II. Concept of Native Title (contd.)

A. Philippine doctrine and test under the IPRA (contd.)
4.

The critical test here is that the tribe/cultural minority has occupied or
possessed the land since time immemorial, continuously to the present.

14

II. Concept of Native Title (contd.)

B. Australian doctrine and test
1.

In Australia the ancestral rights of the IPs are termed native title. Native
title is the recognition by Australian law that some Indigenous people have
rights and interests to their land that come from their traditional laws and
customs. Under each of the state based legislation regarding minerals it is
provided that the state owns all minerals (e.g., in Victoria, the Mineral
Resources ((Sustainable Development)
p
) Act 1990))

2.

Native title was first recognized in Australia through the High Court of
Australiass decision in the case of Mabo and Another v The State of
Australia
Queensland and Another [1989] HCA 69; (1989) 166 CLR 186.

3
3.

Following the decision in Mabo

Mabo, the Native Title Act 1993 (Cth) was
enacted.
15

II. Concept of Native Title (contd.)

B. Australian doctrine and test
4.

In Australia the native people need to show that they have an association
with the area, that traditional laws and customs exist and they continue to
hold native title in accordance with those traditional laws and customs.
Thi requirement
This
i
t off continuity
ti it is
i similar
i il to
t that
th t required
i d in
i the
th Philippines.
Phili i
It should be noted that section 223 of the Native Title Act provides that the
" i ht and
"rights
d iinterests"
t
t " off IP
IPs iin showing
h i th
their
i ttraditional
diti
l llaws and
d customs
t
includes "hunting, gathering, or fishing". However, section 223(1)(b) of the
Native Title act requires that there is a "connection" with the land or
waters. Thus, in Australia, areas used for purely nomadic
nomadic home ranges
ranges
would probably not be considered by the Australian courts as being part of
native title, in contrast with definition under the IPRA of ancestral domain
which includes such.
16

II. Concept of Native Title (contd.)

C. Canadian Doctrine and Test
1.

In Canada, native title is referred to as aboriginal title.

2.

The case of Delgamuukw

g
v. British Columbia [[1997]] 3 S.C.R. 1010 laid down the
essentials of the current test to prove aboriginal title:
a. the land must have been occupied prior to sovereignty, (colonization of
Canada occurred in the 1500s)
b. if present occupation is relied on as proof of occupation pre-sovereignty, there
must be a continuity between present and pre-sovereignty occupation, and
c. at sovereignty, that occupation must have been exclusive.

3.

Again, the requirement for continuity should be noted. This is a common

requirement
i
t across th
the th
three jjurisdictions,
i di ti
h
however it can also
l b
be one off th
the diffi
difficultlt
factors to prove.
17

III. Timelines for Native Title Applications

A. Approach in the Philippines
1.

The IPRA does not provide a timeframe within which cultural minorities
can file a CADT application.

2.

The government requires companies to undergo the FPIC process so long

as the field-based investigation shows that there are known cultural
minorities even if no CADT application has yet been filed
minorities,
filed.

18

III. Timelines for Native Title Applications (contd.)

B. Approach in Australia
1.

It is acknowledged in the Native Title Act that the minerals, petroleum or gas all
belong to the Crown (the Government) Section 190B(9)(a). However, native title
may still exist over land that the minerals, petroleum or gas are located.

2.

Consequently, the Native Title Tribunal in Australia (a body formed under the Native
Title Act) has developed a framework to deal with issues relating to native title and
naturall resource utilization.
ili i
Th attached
The
h d fframework
k ffrom the
h N
Native
i Ti
Title
l T
Tribunal
ib
l
indicates the following regarding timelines in Australia:
a. A state or territory must publish a notification that it wants to grant a tenement
for a proposed development (such as mining or exploration)
exploration).
b. If a native title application does not exist over the land, the indigenous people
have 3 months to file a native title application with the Federal Court.
c Once filed the application follows the ordinary process for determining native
c.
title and the parties may also negotiate a land use agreement.
19

III. Timelines for Native Title Applications (contd.)

B. Approach in Australia (contd.)
d. In case the parties fail to agree on a land use agreement, an arbitral
body (NNT), or a Minister, will make a determination about the act
instead. If agreement cannot be reached and providing six months
has passed after the notification date, any party can ask the Tribunal
to decide if the future act (such as exploration) can go ahead.
The right to negotiate is not a "veto right" of the aboriginal people,
because in case of disagreement between the proponent and the
aboriginal people
people, the NTT or a Minister decides
decides.

20

Notice given
given
Notice

Fast-tracking process

Formal negotiation
Application to Tribunal
to arbitrate

Fast-tracking does not apply

Parties (native title, nonnative title parties and

state/territory government)
participate in state/
territory negotiation process

Notice
published
by state or
territoryy
No
objection to
fast-tracking

Tenement
may be
granted

The state or territory

publishes a notice that it
wants to grant a
tenement for a proposed
development (future act)
such as mining,
exploration or
compulsory acquisition.
The notice indicates
whether the state or
territory considers that
fast-tracking (expedited
procedure) applies.
Usually this process is
applicable for
prospecting and
exploration only.

Native title
parties
object to
fast-tracking

No fast-tracking

Parties agree
National
Native Title
Tribunal
considers
objection

Parties
(native
title and
non-native
title parties)
negotiate
about fasttracking

Tribunal
dismisses
objection

Native title parties

withdraw objection

Copy of
agreement
reached (or
State Deed)
is lodged
with the
Tribunal

Tenement
may be
granted

Tenement
may be
granted

If indigenous people do
not have a native title
application
pp
over the area,,
they have three months
to file a native title
application with the
Federal Court.
A native title application
must pass the
registration test for
indigenous people to
have a say. Registered
applicants involved in
negotiation are often
referred to as native title
parties.

State/
territory
and nonnative
title
parties
have not
negotiated
in good
faith

Legend
National Native Title Tribunal

Determination
that future act
can be done

Determination
that future act
cannot
be done and
tenement is
not granted

Parties agree that fasttracking does not apply

No
agreement

Fast-tracking
applies

Parties may ask National

Native Title Tribunal to
mediate in a state or
territory sponsored
negotiation

Arbitration
Arbitration

tracking process.

If a native title party objects to the fast-tracking process, all parties are encouraged to come to an agreement
about fast-tracking.
If no agreement about fast
fast-tracking
tracking is reached,
reached the Tribunal holds an inquiry into the objection
objection.
If the objection is upheld, all parties must negotiate in good faith about the granting of the tenement.

right to negotiate
process for
proposed
developments
such as mining,
compulsory
acquisition and for
exploration where
fast-tracking does
not apply.

Before the Tribunal starts the arbitration, it may

be asked to consider whether the state or
territory and non-native title parties have
negotiated in good faith.
If state or territory and non-native title parties
have not negotiated in good faith, the request
for arbitration is dismissed and negotiation in
good faith must take place.
Where the arbitration proceeds, the Tribunal
decides (makes a determination) whether or not
the tenement may be granted or may be
granted subject to conditions.

The state or territory initiates and usually assists in negotiations between the
parties.
Native title parties have four months from the date of the notice to object to the fast-

Tenement may
be granted or
granted with
conditions to
protect native
Title interests

fast-tracking
process
(expedited
procedure) for
exploration and
other low impact
activities.

All parties must negotiate in good faith.

Parties may ask the Tribunal to assist in reaching an agreement (mediate).
If negotiations are unsuccessful, parties may ask the Tribunal to act as umpire
(arbitrate) provided they have tried to reach an agreement for a minimum period of
(arbitrate),
six months from the date of the notice.

The Tribunal must take all reasonable steps to

make a determination as soon as practicable
after the request for arbitration.
If the Tribunal has not made a determination
within six months of the request being made, it
needs to explain to the Commonwealth
Attorney-General why the timeframe was not
met.
The Commonwealth Attorney
Attorney- General may
overrule the Tribunals decision within two
months after the decision is made.

21

IV. Obtaining Free and Prior Informed Consent in

the Philippines
pp
1.

The IPRA took effect on 22 November 1997.

2.

Section 56 of the IPRA provides:

Existing Property Rights Regimes. Property rights within the ancestral domains
already existing and/or vested upon effectivity of this Act, shall be recognized and
respected.
respected

3.

This has been interpreted to mean that all exploration and tenement rights existing
or vested prior to effectivity of the IPRA in November 1997 would not be required to
undergo the FPIC process. On the other hand, all applications existing after the
effectivity of the IPRA are required to undergo the FPIC process.
While the
Whil
h above
b
appears to be
b the
h official
ffi i l NCIP position,
ii
as a practical
i l matter,
certain projects may need to obtain the FPIC in any case for social acceptance to
allow the project to proceed.

22

IV. Obtaining Free and Prior Informed Consent in

the Philippines
4.

IPRA, IRR, Section 30: The consent of the ICCs/IPs for a particular proposal shall
not be transferable except in cases of merger, reorganization, transfer of rights,
acquisition
i iti b
by another
th entity,
tit or jjoint
i t venture,
t
tto any other
th party,
t and
d the
th same is
i
provided in the MOA; Provided, however, that the transferee shall assume the
obligations of the transferor, otherwise another FPIC will be required.

5.

IPRA, IRR, Section 30 has been interpreted to mean that no new FPIC is required
provided assignee of the tenement assumes all the rights and obligations of the
assignor
g
under the MOA with the tribe,, and there has been no change
g in the terms
and conditions of the MOA.

23

V. Exercise of Priority Rights

1.

IRR, IPRA, Section 32: The intention of the ICCs/IPs to make use of or exercise
their priority rights in the harvesting, extraction, development or exploitation of any
natural
t l resource within
ithi the
th ancestral
t l domain
d
i shall
h ll b
be fformally
ll d
declared,
l d iin writing
iti b
by
the elders/leaders supported by a petition signed by the majority members of the
community. xxx The Commission [NCIP] in acknowledging the declaration of
ICCs/IPs to exercise their priority right xxx is duty bound to notify the concerned
agency of such declaration xxx Within a period of six (6) months from such notice,
the ICC/IP declarant shall submit its project application to the concerned regulating
agency and comply with the minimum requirements for such application, otherwise
th priority
the
i it right
i ht d
declaration
l ti shall
h ll b
be off no effect.
ff t

2.

It is not clear from the IPRA whether the priority right is vested upon (i) acquisition of
CADT (ii) filing of a CADT application
CADT,
application, or (iii) by the fact that after the field
field-based
based
investigation, there are found to be known cultural minorities in the area.

24

V. Exercise of Priority Rights

3.

In Australia, it appears the native people will be required to file a native title
application within three months from the government/states publication of notice for
a proposed
d exploration
l ti or mining
i i project.
j t Thi
This appears tto b
be a good
d practice
ti th
thatt
can be adopted in the Philippines as a condition for (i) requiring a company to obtain
the FPIC of a tribe/cultural minority, and (ii) the exercise of priority rights by the
tribe/cultural minority.

25

VII. 2010 Tenement Reform Regulations (April

2010)
1.

The following are grounds for denial of mining applications:

a. Failure to obtain the FPIC after a maximum of two attempts; or
b F
b.
Failure
il
tto obtain
bt i th
the NCIP C
Certificate
tifi t off N
Non-overlap
l within
ithi one year
from the date of NCIPs receipt of the letter-request from MGB; or
c. Failure to obtain the Certification Precondition (Compliance
Certificate) within three years from date of receipt of NCIPs receipt of
the letter-request from MGB;

26

VII. 2010 Tenement Reform Regulations (April

2010)
2.

Industry has raised the following comments:

a. The period to obtain the relevant NCIP certification should be
suspended during the existence of any of these circumstances
beyond the control of the applicant.
b. 2010 Tenement Reform regulations should be applied prospectively.
c.

Three-letters notice/warning should be followed before denial of

mining application.

27

VIII. Dealing with Some Practical Issues

1.

Verify that negotiations are being conducted with duly authorized

elders/leaders. Under the FPIC guidelines, it is the duly authorized
elders/leaders that can bind the tribe. Due diligence with NCIP is required
in this regard.

2.

Company needs to ensure that all steps in the FPIC process must be
supervised by the NCIP and prescribed procedures are followed to
minimize risk that the process will be questioned for not following
prescribed procedures.

28

VIII. Dealing with Some Practical Issues

3.

Many cultural minorities have established their own economic arms (tribal
corporation or cooperatives) who can enter into agreements with project
proponents. In instances where there are two or more entities claiming to
be the economic arm (e.g., due to an intra-tribe dispute), an FPIC/NCIP
validation process may be needed to settle such dispute among competing
tribal factions.

4.

In light
g of 2010 tenement reform regulations,
g
, companies
p
need to document
and inform the MGB as soon as possible of events beyond the companys
control that prevented them from complying with the deadlines to obtain
the relevant NCIP certification.

29

VIII. Dealing with Some Practical Issues

3. Timeline for filing by cultural minorities of CADT/CALT applications may
need to be introduced in the Philippines in case:
a. a proponent has applied for a new mining tenement/exploration
permit within a claimed ancestral domain/ancestral land and FPIC is
being required; and
b. the tribe/cultural minority has declared its exercise of its priority
right to exploit natural resources.
Requirement to file CADT application within certain timeframe (with needed
assistance from the NCIP/government to the tribe/cultural minority) would
give greater certainty to proponents of exploration/mining projects on (i)
whether there are cultural minorities in the project area whose FPIC need to
be obtained, and (ii) the specific location/coverage of the claimed ancestral
domain/ancestral land in relation to the area of the project (affects terms of
MOA
O with tribe/cultural
/
minority).
) These are information
f
that are required to
be included in a CADT application.
30

Thank You
You.
Dennis A. Quintero
Partner
Quisumbing Torres
Member Firm of Baker & McKenzie International
12th Floor, Net One Center
26th Street corner 3rd Avenue
Crescent Park West, Bonifacio Global City
Taguig City, Philippines 1634
Tel: +63 2 819 4962 (direct); +63 2 8194700 (trunkline)
Fax: +63 2 816 0080; +63 2 728 7777
Mobile Number: +63 918 9071295
dennis.quintero@bakermckenzie.com
Quisumbing Torres is a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In
accordance with the common terminology used in professional service organizations
organizations, reference to a partner
partner means a person who is a
partner, or equivalent, in such a law firm. Similarly, reference to an office means an office of any such law firm.
31