'IP consent needed before gold exploration'

BAGUIO CITY (November 23, 2024) -- Tribal rights body National Commission on Indigenous Peoples in the Cordillera (NCIP-CAR) sitting at the 4th quarter Regional Development Council – Cordillera Committee on Indigenous Peoples Concerns (RDC-CIPC) meeting on Thursday here pointed out that mining firms seeking to explore mineral deposits within ICC/IP territories need to get consent from the affect villages.

Ancestral Domains/Lands of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) have never been explicitly opened for mining operations, thus, "this precludes the issuance of an Authority to Verify Minerals (ATVM) to corporations,"  NCIP-CAR Special Concerns officials, Atty. Bryan Donggayao and Rocky Ngalob, told the RDC-Cordillera committee.

Earlier on November 8, 2024, NCIP-CAR requested CFC-subsidiary Yamang Mineral Corporation (YMC) to explain why it should not be sued against its ongoing exploration activities within the Ancestral Domains of Abra province. This was prompted by a letter by Sallapadan, Abra Mayor Engr. Fernando Alafris Semanero on November 4, 2024, disclosing that YMC had started exploring without completing the Indigenous Peoples Rights Act (IPRA)-mandated Free and Prior Informed Consent (FPIC) process.

Though, YMC responded to NCIP-CAR arguing they had been issued an Authority to Verify Minerals (ATVM) by the Department of Environment and Natural Resources (DENR).  YMC also insisted that the ATVM did not require a Certification Precondition (CP) or FPIC, citing Executive Order No. 79, Series of 2012.  It further reasoned out that Section 13 of EO No. 79 and DENR Administrative Order 2012-07 only mandated FPIC for Mineral Production Sharing Agreements (MPSAs), Financial Technical Assistance Agreements (FTAAs), Joint Venture Agreements (JVAs), or Co-Production Agreements (CPAs).  As such, they believed, YMC said, that neither an ATVM nor an Exploration Permit was subject to the FPIC requirement.

YMC also asserted before the NCIP-CAR that Ancestral Domains/Lands were not closed to mining, to justify their obtained ATVM.

However, NCIP-CAR disputed YMC’s claims and responded on November 13, 2024, ordering YMC to “cease and desist from any operations […] to avoid further legal repercussions and potential violent incidents in the community.” NCIP-CAR also suspended the FPIC process for YMC and committed to challenging the legality of the issued ATVM.

Donggayao and Ngalob both explained that the "Cease and Desist" order issued to YMC “was due to the company's apparent oversight in classifying Ancestral Domains/Lands as areas open for mining”.  This classification erroneously warranted the issuance of an ATVM, effectively disregarding the ICCs/IPs' right to the FPIC process and CP, they reiterated.



Ngalob further clarified that while Ancestral Domains/Lands were not explicitly listed as closed areas for mining in Executive Order No. 79, Series of 2012, Section 16 of Republic Act No. 7942 explicitly states, "[n]o ancestral land shall be opened for mining operations without prior consent of the indigenous cultural community concerned."  Ngalob emphasized that this consent can only be obtained through the FPIC process, as underscored by the Supreme Court's joint decision in Lone District of Benguet v. Lepanto and Republic v. Lepanto (G.R. No. 244063, June 21, 2022), “this general requirement of consent on the part of the affected ICCs/IPs is now made more specific and concrete through the FPIC and Certification Precondition explicitly mandated in Section 59 of the IPRA”.

Ngalob also stressed, “prevailing laws and jurisprudence are clear. Issuance of ATVM does not apply to Ancestral Domains / Lands absent the due consent of the IPs for the reason that these lands were not explicitly opened for mining. Should the corporations intend to explore mineral reserves within IPs’ Ancestral Domains / Lands, they must, as expressly require under law, undergo the Free and Prior Informed Consent process.”

While, the RDC-CIPC took note of the issue raised by the NCIP, but due to the absence of the Mines and Geosciences Bureau (MGB) despite being invited into the meeting, the committee decided to hear both sides of the issue before acting on the NCIP's request for support for the recall of the ATVM.

Abra lawmaker Menchie Bernos has filed a resolution before the House of Representatives seeking a Congressional Inquiry, she said, “is serious” taking into account the rights and welfare of the Tingguians of Abra affected by the ATVM with an expanse of 16,200 hectares within ancestral domains in Sallapadan, Licuan-Baay, Lacub and Malibcong towns.