Community Perspective on Free Prior and Informed Consent (FPIC)
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Community Perspective on Free Prior and Informed Consent (FPIC)



Community Perspective on Free Prior and Informed Consent (FPIC): Philippine Experience...

Community Perspective on Free Prior and Informed Consent (FPIC): Philippine Experience

Edwin A. Gariguez.

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



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Community Perspective on Free Prior and Informed Consent (FPIC) Presentation Transcript

  • 1. COMMUNITY PERSPECTIVE ON FPIC: PHILIPPINE EXPERIENCE Edwin A. Gariguez Executive Secretary National Secretariat for Social Action – Justice and Peace (NASSA-JP) of the Catholic Bishops’ Conference of the Philippines (CBCP)
  • 2. IP’s in the Philippines-12 to 20 million of the 88.6 million population-61% are in Mindanao,33% are in Luzon, and6% scattered in theVisayas
  • 3. Indigenous Peoples Rights Act of 1997• 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.
  • 4. IP RIGHTS TO SELF-DETERMINATIONINTERNATIONAL HUMAN RIGHTS LAW:• International Covenants on Civil and Political Rightsand 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 PrejudiceUNITED 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)
  • 5. Indigenous Peoples Rights Mining and Indigenous Peoples18 out 23 of Governments original priority projects on IP lands Profound Spiritual link with land Subsistence livelihoods Land targeted for Mining: 30% of landmass
  • 6. The DENR has already identified around 9 millionhectares or 30% of the Philippine territorybelieved to be of high potential for mineraldeposits.Of the said area, a big part of it is alreadycovered with existing mining rights andapplications. And large portion of these areasform part of the protected areas and ancestraldomains of the indigenous peoples(Haribon Policy Paper 2005).
  • 7. Sec. 16. Right to Participate in Decision -Making.- ICCs/IPs have theright to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destiniesthrough procedures determined by them as well as to maintain anddevelop 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 ownpriorities for development affecting their lives, beliefs, institutions,spiritual well-being, and the lands they own, occupy or use. Theyshall participate in the formulation, implementation and evaluationof policies, plans and programs for national, regional and localdevelopment which may directly affect them.
  • 8. Sec. 57. Natural Resources within Ancestral Domains. - TheICCs/IPs shall have the priority rights in the harvesting,extraction, development or exploitation of any naturalresources within the ancestral domains.A non-member of the ICCs/IPs concerned may be allowed totake part in the development and utilization of the naturalresources for a period of not exceeding twenty-five (25) yearsrenewable 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.
  • 9. Sec. 7. Rights to Ancestral Domains.- The rights ofownership and possession of ICCs/IPs t theirancestral domains shall be recognized andprotected. Such rights shall include:Rights of OwnershipRight to Develop Lands and Natural ResourcesRight to Stay in the TerritoriesRight to Regulate Entry of MigrantsRight to Safe and Clean Air and Water FREE, PRIOR & INFORMED CONSENT
  • 10. • IPRA enacted in 1997 requires that no mining permits can be issued without the FPIC of indigenous peoples impacted Free from manipulation & coercion Consent or Rejection based on Free Prior to consensus Prior operations of all Informed commencing community members. Consent Informed adequately of positive & potential negative impacts
  • 11. Free, Prior and Informed ConsentIndigenous 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
  • 13. TOTAL NUMBER OF ISSUED CERTIFICATION Mining Projects 26% (EPs, APSA, MPSA) Mini-hydro / Dam Projects 3% Forestry (Refo- IFMA, FLGMA) ISAG (Small 4% Scale) 2% 58% 7% Research (Bio- diversity) OthersTotal number of Issued CP with AD overlap = 154Certificate of Non-Overlap (CNO) = 678
  • 14. In a study entitled ”Philippine Asset ReformReport Card”, results show that : Extractive activities are present in more thanone-third (39.8%) of the 1.85 million hectaresancestral domains covered by the study, with loggingand mining as the most prevalent extractive industries. It also revealed that a majority (72.1%) of theextractive activities are in operation without theconsent of the tribes (i.e. without securing FPICs).
  • 15. “The lands of the IPs until now are continually being encroachedby so called development projects and mining concessions and ifleft unchecked, the fast-moving intrusion of mining corporations,sanctioned by the country’s liberal policies on investment andindustry, will effectively transform huge portion of the estimated12 million indigenous peoples into migrant peoples making dowith life in a completely new situation.”
  • 16. BHP BILLITON – MACAMBOL: PUJADA NICKEL PROJECT 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“Kept in the Dark: Why it’s the validity of the consent processtime for BHP Billiton to let and therefore the basis of BHPcommunities in the Billiton‟s „social license‟ to operate in Macambol.”Philippines have their say” Catholic Agency for Overseas Development (Cafod), the development agency of the Catholic Church in England and Wales.=1&story_id=171224
  • 17. Kasibu, Nueva Ecija – Oceania Gold MiningThere is a glaring lack ofconsent from majority ofthe communities to beaffected by mining.This is reinforced by theloopholes under thecurrent mining law,where foreign miningcompanies or theirsubsidiaries can be givenexploration permitswithout even requiringconsent from localgovernment units or the The villagers, composed of Bugkalot, Kalanguya andmajority of affected Ifugao, have been vocal about their opposition to thepeoples. mining project, citing hazards to the environment and the population. They questioned Oxianas exploration permit issued in 2000.
  • 18. Systematic undermining of IPRA and theFPIC process: Midsalip• Mining without FPIC = Development Aggression• 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
  • 19. MINDORO NICKEL PROJECT –NORWEGIAN CREW MINERALS Manipulation or manufacturing of FPIC process,the mining company in collusion with thegovernment (NCIP) Divide and conquer strategy, bogus tribe “Buying” out consent thru “developmentassistance” No transparency and lack of disclosure ofimpacts on indigenous communities Mysterious murder of three anti-mining activists
  • 20. 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.
  • 21. The Committee is concerned about informationsuggesting that the situation of the communityof the Subanon of the Mount Canatuan IS NOTAN ISOLATED CASE, but that it is ratherindicative of similar situations faced by otherindigenous communities in the State party.Fatima-Binta Victoire DahChairperson, CERD7 March 2008
  • 22. Mindoro Resources Ltd, a junior mining exploration companyfocused in the Philippines. Its headquarters are in Edmonton,Canada and it is dual listed on the Toronto Stock ExchangeVenture (TSX-V) and the Frankfurt Stock Exchange.Mindoro has a market capitalization of approximately C$31million and its 132.8 million shares are primarily held byCanadian and German retail investors (70%).
  • 23. Mindoro’s secondary explorationtarget, Batangas, on the Southerncoast of Luzon Island is beingexplored under a joint ventureagreement with an internationalmajor Gold Fields Ltd.The Company’s principalexploration tenement, Agata, islocated in Agusan del Norte, 40km south of Surigao City in thenorth western portion ofMindanao Island.
  • 24. The town of Coro, in the Jabonga Municipality, is an IndigenousPeoples’ village. The village is largely comprised of Mamanwa andManobo tribes, with a small group of mainstream Filipinos alsoresident in the village.Under the Indigenous Peoples Rights Act free prior informedconsent (FPIconsent) of indigenous peoples is required for aproject to proceed. At the time of the assessment (1999), the NCIPdid not identify any IP’s living in the area. It was only when MRLcommenced exploration activities in late 1999 that they identifiedthe village of Coro as an IP village, and a Memorandum ofUnderstanding was signed between the Mamanwa, Manobo, MRLand the NCIP at this time.Environmental and Social Review Summary (ESRS) of MRL,Released in 2008
  • 25. FINDINGS FROM THE CSO FIELD VISIT:- The community members, and even the Municipal councilrepresentative, are not aware that there is new funding from IFC- The community validated that there have been 2 consultationswhere they were invited to attend the one in Coro (as mentionedin the IFC document) and another one in Jabonga (not mentionedin the IFC document).- They said that there was indeed an MOU which was drafted afterthe Coro consultation, but they were not part of it.- Pastor Randy of sitio Dinarawan mentioned that during theconsultation in Jabonga in 2008, only their sitio did not give theirconsent (signature) during the consultation. All the other sitiospenned their signature.
  • 26. • 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
  • 27. Source: 08.gif
  • 28. The issue of disclosure of informationis key to ensuring that effective andempowered participation is possible.The IFC does not currently have, nordoes it propose to include in therevisions to its policies, anyrequirement to inform indigenouspeoples of the performance standardsto be applied to a given project.Appropriate disclosure ofinformation includes the provision ofall relevant information to ensurethat effective decision making cantake place.PIPLinks, et al., Statement to the Third session of the UN Expert Mechanism onthe Rights of Indigenous Peoples
  • 30.  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
  • 31. 1. MERE “CONSULTATION” OR BCS CANNOT BE EQUATED WITH CONSENTThe IFC has declared going into the review that their current standard ofBroad Community Support (BCS) is „functionally equivalent‟ to free,prior and informed consent. We reject this equivalency and call on theIFC to introduce the standard of FPIC for all projects affectingindigenous peoples . . .Even the Bank‟s own Compliance Advisor Ombudsman has referred toambiguity in the IFCs “determination of BCS”. BCS removes control ofthe decision making process from indigenous peoples and does notrequire their consent. Instead it requires „expressions of support‟ asevidenced 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 ofsupport from different quarters of the community – creating frictionsand divisions with communities.PIPLinks, et al. in Statement to the Third session of the UN Expert Mechanismon the Rights of Indigenous Peoples
  • 32. 2. FPIC AS MINIMUM STANDARD NOTHING LESS, IN COMPLIANCE TO THE UNDRIPIndigenous peoples and their support organizationsthroughout the world are demanding FPIC as theminimum standard for engagement and any standardswhich seek to anything less will be consideredunacceptable.The IFC has an important influence role to play and byincorporating FPIC into its standards will encourage otheractors, banks, corporates and even state to do likewise.
  • 33. The Manila Declaration of the International Conference on Extractive Industries and Indigenous Peoples 23-25 March 2009In 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 ofthreaten our communities, until structures and processes are inplace that ensure respect for our human rights,• that companies respect international standards . . . Which includesin particular the right to land, territories and territories andattendant right to FPIC
  • 34. 3. NEED FOR FULL TRANSPARENCY AND DISCLOSUREThe lack of transparency in many of thesemining contracts remains to be genuineconcern. In many instances, communities andtheir support groups do not have or are deniedaccess, to relevant and pertinent documentsregarding the mining applications and miningproject details.This is because the government, as part of itsstrategy to attract investors is to tolerate thelack of transparency in the mining industry.In some cases, the actual revenues generatedby these mining companies are padded, orsubjected to overly generous incentives. Thisthen denies the communities and even LGUs oftheir just share in the benefits of mining.CSO Assessment of MTPDP (2004-2010)
  • 35. 4. NEED FOR THIRD PARTY AUDIT or OVERSIGHTPeople should have access to independent technical andlegal advisors that can assist them in the interpretation ofall the information.They must be able to seek information from sources otherthan the mining company regarding the potential impactsof the proposed exploration and mine on their lives.Risk must be accurately cahracterized, articulated andunderstood by the IP communities.
  • 36. CASE AT POINT: MINDORO RESOURCES LIMITED (MRL) ON IFC CATEGORIZATION 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. 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.
  • 37. 5. STRICT COMPLIANCE TO THE BASIC PRINCIPLES OF FPIC, NO CIRCUMVENTION OR MANIPULATION 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
  • 38. 6. FPIC IS NOT ONLY ABOUT GIVING CONSENT, BUT WITHOLDING CONSENT AS WELLFPIC FOR SELF –DETERMINED DEVELOPMENT:For indigenous peoples to be in a position to realize this self-determineddevelopment within their territories they must be able to precludeexternally imposed development projects that run contrary to theseplans and priorities. Indigenous communities may already have, or wishto develop, alternative development plans and priorities for their ownterritories 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 therelationship between states, corporations and other third parties withindigenous peoples from one premised on mere consultation in decisionmaking to one premised on the right of indigenous peoples to freelypursue their economic, social and cultural development.Cathal Doyle, Statement to the Third session of the UN Expert Mechanism on theRights of Indigenous Peoples
  • 39. Thank you!
  • 41. World Bank should fully implement its guidelinesand safeguard procedures which, if applied, wouldunder current conditions preclude investment inmost, if not all, Philippine mining projects.This would include the proposed IFC equityinvestment of up to Can$5 million project in aCanadian Mining Junior, Mindoro Resources Ltd.(MRL), which is planning operations throughout thePhilippines.Robert Goodland et al., Philippines: Mining of Food?