COMMUNITY PERSPECTIVE ON FPIC:

PHILIPPINE EXPERIENCE

Edwin A. GariguezExecutive Secretary

National Secretariat for Social Action – Justice and Peace (NASSA-JP) of the Catholic Bishops’ Conference of the Philippines (CBCP)

-12 to 20 million of the

88.6 million population

-61% are in Mindanao,

33% are in Luzon, and

6% scattered in the

Visayas

IP’s in the

Philippines

• Recognizes the rights of ownership of IP communities over their ancestral lands/domains;

• Follows the principle of “Self-Delineation” in the ID of ancestral domains;

• Respects the traditional Resource Management Practices of the IP communities;

• Defines for a process of recovery of lost ancestral domains.

• Institutionalizes the role of NGOs in the delineation process.

Indigenous Peoples Rights Act of 1997

UNITED NATIONS DECLATION ON THE RIGHTS OF THE IP:

7 out of 46 Operational Articles of the UNDRIP refer to FPIIC

(Articles 11, 26, 27, 28, 29, 30, 32)

INTERNATIONAL HUMAN RIGHTS LAW:

• International Covenants on Civil and Political Rights

and on Economic, Social and Cultural Rights

• CERD

• ILO’s Convention 107 and 169 on Tribal & Ips

• African Charter on Human and Peoples’ Rights

• American Convention on Human Rights

• UNESCO Declaration on Race and Race Prejudice

IP RIGHTS TO SELF-DETERMINATION

Indigenous Peoples RightsMining and Indigenous Peoples

Land targeted for Mining: 30% of landmass

18 out 23 of Governments original

priority projects on IP lands

Profound Spiritual link with land

Subsistence livelihoods

The DENR has already identified around 9 million

hectares or 30% of the Philippine territory

believed to be of high potential for mineral

deposits.

Of the said area, a big part of it is already

covered with existing mining rights and

applications. And large portion of these areas

form part of the protected areas and ancestral

domains of the indigenous peoples

(Haribon Policy Paper 2005).

Sec. 16. Right to Participate in Decision -Making.- ICCs/IPs have the

right to participate fully, if they so choose, at all levels of decision-

making in matters which may affect their rights, lives and destinies

through procedures determined by them as well as to maintain and

develop their own indigenous political structures.

Sec. 17. Right to Determine and Decide Priorities for Development.-

The ICCs/IPs shall have the right to determine and decide their own

priorities for development affecting their lives, beliefs, institutions,

spiritual well-being, and the lands they own, occupy or use. They

shall participate in the formulation, implementation and evaluation

of policies, plans and programs for national, regional and local

development which may directly affect them.

Sec. 57. Natural Resources within Ancestral Domains. - The

ICCs/IPs shall have the priority rights in the harvesting,

extraction, development or exploitation of any natural

resources within the ancestral domains.

A non-member of the ICCs/IPs concerned may be allowed to

take part in the development and utilization of the natural

resources for a period of not exceeding twenty-five (25) years

renewable for not more than twenty-five (25) years:

Provided, That a formal and written agreement is

entered into with the ICCs/IPs concerned or that

the community, pursuant to its own decision

making process, has agreed to allow such operation:

Provided, finally, That the all extractions shall be

used to facilitate the development and

improvement of the ancestral domains.

Sec. 7. Rights to Ancestral Domains.- The rights of

ownership and possession of ICCs/IPs t their

ancestral domains shall be recognized and

protected. Such rights shall include:

Rights of Ownership

Right to Develop Lands and Natural Resources

Right to Stay in the Territories

Right to Regulate Entry of Migrants

Right to Safe and Clean Air and Water

FREE, PRIOR & INFORMED CONSENT

Free

Prior

Informed

Consent

Consent

or Rejection

based on

consensus

of all

community

members.

Free

from manipulation &

coercion

Prior to

operations

commencing

Informed

adequately of positive &

potential negative

impacts

• IPRA enacted in 1997 requires that no

mining permits can be issued without the

FPIC of indigenous peoples impacted

Free, Prior and Informed Consent

Indigenous Peoples Rights Act, Sect. 3, g

• consensus of all members of the ICCs/Ips

• determined in accordance with their respective customary laws and practices

• free from any external manipulation, interference coercion,

• and obtained after fully disclosing the intent and scope of the activity,

• in a language and process understandable to the community

FPIC PROCESS FLOWCHART

ENDORSING GOVERNMENT

AGENCY

APPLICANT

NCIP REGIONAL OFFICE

PRE-FBI CONFEREN

CE

PAYMENT OF FBI FEE FBI

PROJECT REJECTED

MOA & SUPPORTING DOCUMENTS

PROJECT ACCEPTED

FPIC MANDATORY ACTIVITIES

PAYMENT OF FPIC

FEE

FBI REPORT

OVERLAP

COMMISSION

EN BANC

PRE-FPIC CONFERENCE

CNO ISSUED BY REGIONAL DIRECTOR

NO OVERLAP

NO OVERLAP

PER MASTERLIS

T

OVERLAP PER MASTERLIST OR

MASTERLIST NOT AVAILABLE

CNO ISSUED IN

3 DAYS

FBI - Field – Based investigation

CNO – Certificate of non-Overlap issued by Regional Director

MOA – Memorandum of Agreement

3%

7%2%

4%

26%

58%

Mining Projects

(EPs, APSA,

MPSA)

Mini-hydro / Dam

Projects

Forestry (Refo-

IFMA, FLGMA)

ISAG (Small

Scale)

Research (Bio-

diversity)

Others

Total number of Issued CP with AD overlap = 154

Certificate of Non-Overlap (CNO) = 678

TOTAL NUMBER OF ISSUED CERTIFICATION

In a study entitled ”Philippine Asset Reform

Report Card”, results show that :

Extractive activities are present in more than one-third (39.8%) of the 1.85 million hectares ancestral domains covered by the study, with logging and mining as the most prevalent extractive industries.

It also revealed that a majority (72.1%) of the extractive activities are in operation without the consent of the tribes (i.e. without securing FPICs).

“The lands of the IPs until now are continually being encroached

by so called development projects and mining concessions and if

left unchecked, the fast-moving intrusion of mining corporations,

sanctioned by the country’s liberal policies on investment and

industry, will effectively transform huge portion of the estimated

12 million indigenous peoples into migrant peoples making do

with life in a completely new situation.”

“Kept in the Dark: Why it’s

time for BHP Billiton to let

communities in the

Philippines have their say”

http://archive.inquirer.net/view.php?db

=1&story_id=171224

The report claimed that, among

others, bribery attended the

processes of securing the informed

consent and support of affected

Macambol residents, particularly

among some members of the

indigenous peoples.

“Amcor and government officials

from the National Commission on

Indigenous Peoples offered

inducements to people in Macambol

in order to obtain support for the

project.” These allegations, the

report said, “cast further doubt on

the validity of the consent process

and therefore the basis of BHP

Billiton‟s „social license‟ to operate

in Macambol.”

Catholic Agency for Overseas Development (Cafod), the development agency of the Catholic Church in England and Wales.

BHP BILLITON – MACAMBOL:

PUJADA NICKEL PROJECT

Kasibu, Nueva Ecija –

Oceania Gold Mining

There is a glaring lack of

consent from majority of

the communities to be

affected by mining.

This is reinforced by the

loopholes under the

current mining law,

where foreign mining

companies or their

subsidiaries can be given

exploration permits

without even requiring

consent from local

government units or the

majority of affected

peoples.

The villagers, composed of Bugkalot, Kalanguya and

Ifugao, have been vocal about their opposition to the

mining project, citing hazards to the environment and

the population. They questioned Oxiana's exploration

permit issued in 2000.

Systematic undermining of IPRA and the

FPIC process: Midsalip

• Repeated attempts to engineer consent. Tactics include

– Misrepresentation,

– Bribery,

– Misinformation

• Bureaucratic means: Erosion of FPIC and EIA protections by harmonizing implementing guidelines with Mining Act.

Mt Pinukus - range of mountains held sacred by the Subanen People

• Mining without FPIC = Development Aggression

MINDORO NICKEL PROJECT –

NORWEGIAN CREW MINERALS

Manipulation or manufacturing of FPIC process,

the mining company in collusion with the

government (NCIP)

Divide and conquer strategy, bogus tribe

“Buying” out consent thru “development

assistance”

No transparency and lack of disclosure of

impacts on indigenous communities

Mysterious murder of three anti-mining activists

Mt Canatuan Case –

Under Examination by UN CERD

• Mt Canatuan - ancestral domain of Subanon people and their sacred mountain

– Dubious acquisition of land and mineral rights and manipulation of inconsistencies in legislation to avoid FPIC

• Created divisions within community and undermined the Subanon traditional structures and practices posing threat to their cultural survival.

– Desecrated their sacred mountain.

– Evicted people from their homes - 40 Families directly affected.

– Damaged livelihoods and caused health impacts.

The Committee is concerned about information

suggesting that the situation of the community

of the Subanon of the Mount Canatuan IS NOT

AN ISOLATED CASE, but that it is rather

indicative of similar situations faced by other

indigenous communities in the State party.

Fatima-Binta Victoire Dah

Chairperson, CERD

7 March 2008

Mindoro Resources Ltd, a junior mining exploration company focused in the Philippines. Its headquarters are in Edmonton, Canada and it is dual listed on the Toronto Stock Exchange Venture (TSX-V) and the Frankfurt Stock Exchange.

Mindoro has a market capitalization of approximately C$31 million and its 132.8 million shares are primarily held by Canadian and German retail investors (70%).

The Company’s principal exploration tenement, Agata, is located in Agusan del Norte, 40 km south of Surigao City in the north western portion of Mindanao Island.

Mindoro’s secondary exploration target, Batangas, on the Southern coast of Luzon Island is being explored under a joint venture agreement with an international major Gold Fields Ltd.

The town of Coro, in the Jabonga Municipality, is an Indigenous

Peoples’ village. The village is largely comprised of Mamanwa and

Manobo tribes, with a small group of mainstream Filipinos also

resident in the village.

Under the Indigenous Peoples Rights Act free prior informed

consent (FPIconsent) of indigenous peoples is required for a

project to proceed. At the time of the assessment (1999), the NCIP

did not identify any IP’s living in the area. It was only when MRL

commenced exploration activities in late 1999 that they identified

the village of Coro as an IP village, and a Memorandum of

Understanding was signed between the Mamanwa, Manobo, MRL

and the NCIP at this time.

Environmental and Social Review Summary (ESRS) of MRL,

Released in 2008

FINDINGS FROM THE CSO FIELD VISIT:

- The community members, and even the Municipal council

representative, are not aware that there is new funding from IFC

- The community validated that there have been 2 consultations

where they were invited to attend the one in Coro (as mentioned

in the IFC document) and another one in Jabonga (not mentioned

in the IFC document).

- They said that there was indeed an MOU which was drafted after

the Coro consultation, but they were not part of it.

- Pastor Randy of sitio Dinarawan mentioned that during the

consultation in Jabonga in 2008, only their sitio did not give their

consent (signature) during the consultation. All the other sitios

penned their signature.

• The Environmental and Social Review Summary

of 2008 is comprehensive and looks good on

paper but one thing to consider, which is not

clear from the ESRS is the impact on the

watershed as the area for exploration is part of

the Lake Mainit watershed

– Home to 31 coastal barangays, with grade A

water, 4th largest lake and already a volatile

watershed with a lot of environmental

problems/threats; main source of water,

irrigation, and livelihood

Mary Ann Manahan, Focus on the Global South |

July 7, 2010

Source: http://www.mindoro.com/i/maps/MIO-NR-map-May-13-08.gif

The issue of disclosure of information

is key to ensuring that effective and

empowered participation is possible.

The IFC does not currently have, nor

does it propose to include in the

revisions to its policies, any

requirement to inform indigenous

peoples of the performance standards

to be applied to a given project.

Appropriate disclosure of

information includes the provision of

all relevant information to ensure

that effective decision making can

take place.

PIPLinks, et al., Statement to the Third session of the UN Expert Mechanism on the Rights of Indigenous Peoples

SOME GENERAL

RECOMMENDATIONS ON

OPERATIONALIZING

GENUINE FPIC

Total amount: US$ 304.2 M, 10 projects

◦ Infrastructure: US$ 155 M

◦ Mining: US$ 9.4

◦ Education Services: US$ 35

◦ Finance: US$ 24.5

◦ Industrial and Consumer Products: US$ 75

◦ Others: US$ 5.3

2 are equity financing, 1 debt and equity, 3 loans, 1 structured finance (risk sharing), 1 sub-national finance (to an LGU); 1 grant, 1 grant and risk sharing

The IFC has declared going into the review that their current standard of

Broad Community Support (BCS) is „functionally equivalent‟ to free,

prior and informed consent. We reject this equivalency and call on the

IFC to introduce the standard of FPIC for all projects affecting

indigenous peoples . . .

Even the Bank‟s own Compliance Advisor Ombudsman has referred to

ambiguity in the IFC's “determination of BCS”. BCS removes control of

the decision making process from indigenous peoples and does not

require their consent. Instead it requires „expressions of support‟ as

evidenced by a broad array of indicators including one-to-one agreements,

and agreements reached with affected households or groups.

The effect is to encourage clients to gradually collect fragments of

support from different quarters of the community – creating frictions

and divisions with communities.

PIPLinks, et al. in Statement to the Third session of the UN Expert Mechanism on the Rights of Indigenous Peoples

1. MERE “CONSULTATION” OR BCS CANNOT BE EQUATED WITH CONSENT

Indigenous peoples and their support organizations

throughout the world are demanding FPIC as the

minimum standard for engagement and any standards

which seek to anything less will be considered

unacceptable.

The IFC has an important influence role to play and by

incorporating FPIC into its standards will encourage other

actors, banks, corporates and even state to do likewise.

2. FPIC AS MINIMUM STANDARD NOTHING LESS, IN COMPLIANCE TO THE UNDRIP

The Manila Declaration of the International Conference on

Extractive Industries and Indigenous Peoples

23-25 March 2009

In order to ensure respect for the rights recognized in the UNDRIP,

as well as the ecological integrity of our planet and communities,

we call for:

• a stop to the plunder of our land, territories and resources,

• a moratorium on further extractive industry projects that affect of

threaten our communities, until structures and processes are in

place that ensure respect for our human rights,

• that companies respect international standards . . . Which includes

in particular the right to land, territories and territories and

attendant right to FPIC

The lack of transparency in many of these

mining contracts remains to be genuine

concern. In many instances, communities and

their support groups do not have or are denied

access, to relevant and pertinent documents

regarding the mining applications and mining

project details.

This is because the government, as part of its

strategy to attract investors is to tolerate the

lack of transparency in the mining industry.

In some cases, the actual revenues generated

by these mining companies are padded, or

subjected to overly generous incentives. This

then denies the communities and even LGUs of

their just share in the benefits of mining.

CSO Assessment of MTPDP (2004-2010)

3. NEED FOR FULL TRANSPARENCY AND DISCLOSURE

4. NEED FOR THIRD PARTY AUDIT or OVERSIGHT

People should have access to independent technical and

legal advisors that can assist them in the interpretation of

all the information.

They must be able to seek information from sources other

than the mining company regarding the potential impacts

of the proposed exploration and mine on their lives.

Risk must be accurately cahracterized, articulated and

understood by the IP communities.

The IFC has faced a number of problems over the past few years with

inaccurate classifications being placed on projects, leading to projects

involving the expansion of oil palm on indigenous peoples‟ lands in

Indonesia being classed as category „C‟, i.e. having little to no impact.

It is essential, in our view, that the categories assigned to projects

impacting on indigenous peoples be verified by the people concerned or,

at a minimum, are independently verified as being accurate. Without

this, indigenous peoples are rendered unable to refute or reject the

external assessment of development agencies as to the nature and scale

of impacts of the project.

PIPLinks, et al. in Statement to the Third session of the UN Expert Mechanism on the Rights of Indigenous Peoples.

Environmental and Social Issues B - Limited :

This is a category B project according to IFC’s procedure for Environmental and Social Review of projects because the exploration has limited adverse social and environmental impacts that are site specific and will be largely reversible and readily addressed through mitigation measures.

CASE AT POINT: MINDORO RESOURCES LIMITED (MRL) ON IFC CATEGORIZATION

Free, Prior and Informed Consent

Indigenous Peoples Rights Act, Sect. 3, g

• consensus of all members of the ICCs/Ips

• determined in accordance with their respective customary laws and practices

• free from any external manipulation, interference coercion,

• and obtained after fully disclosing the intent and scope of the activity,

• in a language and process understandable to the community

5. STRICT COMPLIANCE TO THE BASIC PRINCIPLES OF FPIC, NO CIRCUMVENTION OR MANIPULATION

FPIC FOR SELF –DETERMINED DEVELOPMENT:

For indigenous peoples to be in a position to realize this self-determined

development within their territories they must be able to preclude

externally imposed development projects that run contrary to these

plans and priorities. Indigenous communities may already have, or wish

to develop, alternative development plans and priorities for their own

territories that are based on their own conceptions of well-being.

FPIC AND RECOGNITION OF IP RIGHTS:

Implementation of the principle of FPIC implies a transformation of the

relationship between states, corporations and other third parties with

indigenous peoples from one premised on mere consultation in decision

making to one premised on the right of indigenous peoples to freely

pursue their economic, social and cultural development.

Cathal Doyle, Statement to the Third session of the UN Expert Mechanism on the Rights of Indigenous Peoples

6. FPIC IS NOT ONLY ABOUT GIVING CONSENT, BUT WITHOLDING CONSENT AS WELL

Thank you!

MINDORO NICKEL PROJECT –

NORWEGIAN CREW MINERALS

World Bank should fully implement its guidelines

and safeguard procedures which, if applied, would

under current conditions preclude investment in

most, if not all, Philippine mining projects.

This would include the proposed IFC equity

investment of up to Can$5 million project in a

Canadian Mining Junior, Mindoro Resources Ltd.

(MRL), which is planning operations throughout the

Philippines.

Robert Goodland et al., Philippines: Mining of Food?