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)

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, and
6% scattered in the
Visayas

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-DETERMINATION
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
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)

5. Indigenous Peoples Rights
Mining and Indigenous Peoples
18 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 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).

7. 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.

8. 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.

9. 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

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 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

12. FPIC PROCESS FLOWCHART
OVERLAP PER PRE-FBI PAYMENT OF
MASTERLIST OR CONFEREN FBI FEE FBI
ENDORSING NCIP MASTERLIST CE
GOVERNMENT REGIONAL NOT AVAILABLE
AGENCY OFFICE
FBI
NO CNO REPORT
OVERLAP ISSUED IN
APPLICANT PER 3 DAYS
MASTERLIS
T OVERLAP NO
OVERLAP
PROJECT
REJECTED PRE-FPIC CNO
CONFERENCE ISSUED BY
FPIC PAYMENT REGIONAL
MANDATORY OF FPIC DIRECTOR
ACTIVITIES FEE
MOA &
SUPPORTING PROJECT
DOCUMENTS ACCEPTED
COMMISSION
EN BANC FBI - Field – Based investigation
CNO – Certificate of non-Overlap issued by Regional Director
MOA – Memorandum of Agreement

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)
Others
Total number of Issued CP with AD overlap = 154
Certificate of Non-Overlap (CNO) = 678

14. 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).

15. “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.”

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 process
time for BHP Billiton to let and therefore the basis of BHP
communities 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
http://archive.inquirer.net/view.php?db Church in England and Wales.
=1&story_id=171224

17. 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 The villagers, composed of Bugkalot, Kalanguya and
majority of affected Ifugao, have been vocal about their opposition to the
peoples. mining project, citing hazards to the environment and
the population. They questioned Oxiana's exploration
permit issued in 2000.

18. Systematic undermining of IPRA and the
FPIC 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 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

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 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

22. 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%).

24. 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 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.

28. 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

29. 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.

30. • 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

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

32. 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

36. SOME GENERAL
RECOMMENDATIONS ON
OPERATIONALIZING
GENUINE FPIC

37.  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

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

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

40. 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

41. 3. NEED FOR FULL TRANSPARENCY AND DISCLOSURE
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)

42. 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.

43. 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.

44. 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

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

46. Thank you!

50. MINDORO NICKEL PROJECT –
NORWEGIAN CREW MINERALS

51. 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?