Community Right Base Advocacy on Extractive Industries

sampulAdvokasiIndustriEkstratif.indd1 sampulAdvokasiIndustriEkstratif.indd110/11/201514:43:19 10/11/201514:43:19

Community
Right Base Advocacy
on Extractive Industries:
Framing and Experience from South East Asia Countries
Pius Ginting
Meliana Lumbantoruan
Ronald Allan Barnacha

Community Right Base Advocacy on Extractive Industries:
ii
Community Right Base Advocacy on Extractive Industries: Framing and Experience
from Southeast Asia Countries
ISBN : 978-602-72039-6-9
Writer
Pius Ginting
Mining and Energy Campaigner, Wahana Lingkungan Hidup Indonesia
Meliana Lumbantoruan.
Research and Knowledge Manager, Publish What You Pay Indonesia
Ronald Allan Barnacha
Advocacy Oﬃcer, Philippines Rural Reconstruction Movement (PRRM)
Reviewer
Christina Hill
Mining advocacy coordinator, Oxfam Australia
Maryati Abdullah
National Coordinator, Publish What You Pay Indonesia
All Right Reserved
First Edition, 2015
This paper was published by Yayasan Transparasi Sumberdaya Ekstraktif-Publish
What You Pay Indonesia, with supported by Natural Resources Governance Institute
and United State Agency for International Development (USAID). The contents are the
responsibility of Publish What You Pay (PWYP) Indonesia and do not necessarily reﬂect
the views of USAID, the United States Government, or the Natural Resource Governance
Institute (NRGI).
Publish What You Pay Indonesia
Jl. Tebet Utara 2C No.22B, Jakarta Selatan 12810, Indonesia
Telp/Fax :+62-21-8355560 | E: sekretariat@pwyp-indonesia.org
Advokasi Berbasis Hak di Industri Ekstraktif:
Bingkai dan Pengalaman dari Negara-negara Asia Tenggara
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iii
Table of Contents
Background.............................................................................................................................................................................1
The Importance of Community Right on Extractive Industries Value Chain. ..............................2
The Importance of Community Right Based Advocacy ............................................................................5
Deﬁnition & International Framework....................................................................................................................7
Right Base Approach....................................................................................................................................................7
Free Prior Inform Consent (FPIC)..........................................................................................................................7
FPIC on the ICMM’s Framework View..............................................................................................................10
Right to Information (RTI).......................................................................................................................................13
Case Study from Southeast Asia ...............................................................................................................................15
Case Study of Indonesia ...........................................................................................................................................15
History of Community Right Advocacy & FPIC of Indonesia........................................................16
Regulation Framework in Indonesia on FPIC..........................................................................................16
Role of CSOs on Raising Awareness and Empowering the Community....................................18
Case Study of Philippines ........................................................................................................................................21
Regulation Framework.........................................................................................................................................21
Philippine Constitution of 1987 .......................................................................................................................21
The Indigenous Peoples’ Rights Act of 1997 (IPRA).............................................................................. 22
Recent FPIC Developments in Philippine Law ...................................................................................... 24
Revenue Sharing to the Indigenous Community...................................................................................27
Community Right Advocacy on Extractive Operations.................................................................... 28
The Struggle Continues: Uphold the Rights of Indigenous Peoples...........................................30
Role of Civil Society Organizations..............................................................................................................30
Global Experiences........................................................................................................................................................... 33
Case Study of Australia............................................................................................................................................ 33
Case Study of Norway: How to Respect Indigenous Peoples Overseas.......................................... 33
Lesson Learnt & Recommendations....................................................................................................................... 35
Lesson Learnt on Regulation Framework...................................................................................................... 35
Lesson Learnt on Role of CSOs and Community Empowering .......................................................... 35
Lesson Learnt on Policy and Institutional Advocacy .............................................................................. 35
Bibliography ........................................................................................................................................................................ 37

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v
Preface
E
xtractive industries (EI) has played a more
active role in the Southeast Asian countries.
In that case, there are community rights
that must be respected. One approach that is o en
used is a human rights-based approach or a rights-
based advocacy abbreviated, usually associated
with the need-based advocacy. In a rights-based
advocacy, economic issues, social and political
views encountered a community of inalienable
rights are protected and respected and considers
human rights are not protected, unfulﬁlled and
unpredictable and with access rights, community
can be responsibly used to create constructive
community life. Meanwhile, in a community needs-
based advocacy, a community group that is seen as
dealing with the problem and the need to be the
target of acts of charity.
Rights-based approach should be applied in
the whole chains of the extractive industry. The
main concern at this stage is that the rights of
peoples to safe environment and land rights and
guarantee that the development of “local content”
level, the monitoring participatory and equitable
in the distribution of income from the extractive
sector, and ensuring the guarantee post-mining
operations to perform environmental remediation
to ensure the safety and environmental standards.
This article will review some experience
community rights-based advocacy from Southeast
Asian countries especially Indonesia and the
Philippines. The review covers the regulation
framework of community rights, the role of civil
society in advocacy and featuring several case
studies of the experience of each country. In
addition this paper also describes the International
learning, namely from the State Australia and
Norway.
We thank you for the cooperation of all parties
who helped the authors to ﬁnish this paper. The
completion of this paper held in support of USAID,
Natural Resource Governance Institute (NRGI),
and particularly for Christina Hill who already
providing input to the contents of this paper, and
thelast,wethankyouforallbigsupportofNational
Secretariat of PWYP Indonesia colleagues.
Jakarta, May 2015
Maryati Abdullah
National Coordinator of Publish What You Pay
Indonesia

vi

1
H
uman rights-based approach to advocacy,
or shortened as rights-based advocacy,
usually associated with needs-based
advocacy. However the two can be differentiated.
In rights-based advocacy, economic, social and
political problems faced by a community viewed
frominalienablerightsareprotectedandrespected.
Meanwhile, in needs-based community advocacy,
a community is seen as a group that deals with
problem and needs to become a target of charity
actions. In needs-based approach, a community
views itself as a disadvantaged group and requires
assistance. In contrast, in rights-based approach it
considers its human rights unprotected, unfulfilled
and unexpected and by accessing its rights, it
will bear the responsibility to use them to create
constructive community life.
Extractive industries (EI) have played a more
active role in Southeast Asia (SEA) countries, it can
be seen on trade data trend on extractive sector.
According to ASEAN trade statistic on 2013 Intra
and Extra on export and import in extractive
sector accounted as the second biggest from total
value of the greatest trade in ASEAN. Total intra
and extra trade value of extractive sector per 2013
is US$493988 million (export value: US$ 220166
million and import value: US$273821 million). The
total trade value of extractive sector Share 19,7% to
total ASEAN trade.
The trend also can see in Indonesia a er the
1998 economic crisis as proven by rising number of
permits from less than 4,000 in the period before
the crisis to 10,918 by 2014.1
Export values from
1 Directorate General Mineral and Coal, Ministry of Energy and
Mineral Resources March 2014.
extractive sectors have also followed an upward
trend with figures of export value of coal jumped
highly by 600% from nearly US$ 4 billion in 2005 to
US$ 24 billion in 2013 as shown by the graph below.
Figure 1. Export Value of Three Mineral
Commodities
Source: Central Agency on Statistic , 2014
However, despite such big value of economy,
intensive activities in the EI have yet to
automatically improve lives of peoples inhabiting
areas around mining sites. In fact, many region
in Indonesia with EI are still underdeveloped.
For instance, West Sumbawa, Mimika, South
Bangka, Morowali, and West Kutai.2
To certain
extent, geographical factors in remote areas pose
a challenge to construct necessary infrastructure
to elevate a region from its underdeveloped status.
However, it seems that extractive industries
contribute to this status because despite its long
operation period in these areas, it cannot brings
prosperity to local people.
2 h p://www.kemenegpdt.go.id/hal/300027/183-kab-daerah-
tertinggal
Background
30000
25000
20000
15000
10000
5000
0
2005 2006 2007 2008 2009 2010 2011 2012 2013
4,354.1
6,085.7 6,681.4
10,485.2
13,817.1
Export Value (US$ 000.000)
US$000.000
18,499.4
27,221.9 26,166.3
24,501.4

2
In terms of employment, the extractive sector
employs only 1,555,564 people (1% of all jobs).
This figure is relatively small compared to
agriculture, plantation, and fishery which
employ 35% of the labor force (Indonesia
Statistic Agency). According to the Ministry
of Industry from 2009 to 2013 the industry has
generated some 60,000 jobs.3
Mining sector
absorbs less labor because the extractive
industries depend on mechanical technology that
does not require a lot of people.
Since under market mechanism local people
are not automatically employed in extractive
industries, rights-based advocacy is compulsory.
To prevent the community inhabiting areas
surrounding locations of extractive industries
from being underdeveloped, the consensus to
carry out these industrial activities must result
solely from free informed consent considering.
Many communities feel desperate and frustrated
by operation of extractive industries in their
living spaces. Extractive industry is viewed to
cause disruptions in their traditional life pa erns,
polluting water, air, and seas, and triggering land
grabbing. They also complain that the extractive
industry have strong power and alliance. Thus,
community felt that they do not have hopes other
than accepting the negative impacts the industry.
The Importance of Community Right on
Extractive Industries Value Chain
Extractive industry may cause various impacts,
environmentally and socio-economically. EI should
contribute to sustainable development therefore
the development of EI should be guided by sound
governance and transparency principles from the
awarding of contracts and licenses, through the oil
fields operations, until the collection and final use
of generated rents. Following is Value chain of EI:
3 h p://www.pwc.com.au/asia-practice/indonesia/assets/
publications/mineIndonesia-May-2013.pdf, page 28
Chart 1 : Extractive Industry Value Chain
Source: E Mayorga Alba, 2009 - EI Value Chain: A
comprehensive integrated approach to developing EI
Rights-based approach should be applied in the
whole chain of extractive industry. The first phase
of the chain is in preparing mining area. The main
concern in this phase is on people’s rights over safe
environment and land right and also guarantee
the development of “local content”–including local
consultations and the use of local labor, goods
and services –are key aspects of hydrocarbon and
mining projects. When properly defined, local
content obligations improve projects’ economic
and social benefits, and help minimize their long-
term risk.
In the second chain, during operation phase,
people must fight for a ention to environmental
issues such as involve in early consultation and
participatory monitoring practices and fairness in
income distribution and from extractive sectors.
Adequate administrative and audit capacity and
ensuring there is regular public reporting is in the
third chain. Fourth chain is ensuring the revenue
sharing between the central government and the
sub-national governments is generally established
in the country’s constitution and/or by laws. And in
fi h chain is shoving the evaluation on EI projects
that included an estimate of environmental
and social impacts, and expected socioeconomic
benefits and their long-term sustainability,
and also gave a ention on Issues related to the
decommissioning of old oil and gas fields and
mines deserve careful a ention, including post-
closure monitoring.
Post mining operation, rehabilitation of
damaged environment is crucial to ensure safety
and environment standard . In addition, the post-
mining economic activities must also be a concern.
If the people are aware of their rights and capable
Advokasi Berbasis Hak di Industri Ekstraktif:
Bingkai dan Pengalaman dari Negara-negara Asia Tenggara
2

3
of struggling in order to enable them to be realized,
these issues can be handled well and they will not
become weak citizens and stay in uncertainties as
is the case with charity approach.
The rights-based approach in extractive
industries is vital to ensure that these people can
obtain positive impact from their presence and it
can be felt not only by a few elites, but also by the
whole community. Applying rights-based approach
will overcome negative effects of extractive
industrial activities, which produce resource-curse
phenomenon, because rights of the community is
protected, respected and fulfilled on the basis of
international and national laws as well as the need
to apply participative development.
As extractive industries possess a specific
character, which is bringing big environmental
impact to the surrounding community, and
comprise series of activities in mining/extraction,
thus right based approach is ideal to be applied
in each phase of activities – (1) in the consensus
whether the mining is carried out or not, (2) during
production, such as surging production and
environmental aspects throughout production
processes, (3) transportation of mining output
which can produce dust along the route, and (4)
post-mining activities. The phases are illustrated
in the image below.
Figure 2 : Points in Mining Cycles Crucial for FPIC
Source: Ministry of Energy and Mineral Resources (modified)
3

4

5
The Importance of
Community Right
Based Advocacy
A
dvocacy is the process of using information
strategically to change policies that affect
the lives of disadvantaged people. It
o en involves lobbying northern development
and political institutions. Advocacy skills use to
challenge local, national and international policies,
strengthening the structures through which
people can participate in the formulation of the
policies that control their lives and making chance
to people get involve in policy change Some kind
of the advocacy is called as community right base
advocacy.
Community-rights based advocacy has been
promoted and carried out by civil organizations.
This type of advocacy is different to one that offers
assistance to a community without providing a
solid framework about people’s rights and that
views it as a beneficiary instead of an object with
powerful rights.
The significance of community rights-based
advocacy is based on the assumption that a
community can get a be er life if the state fulfills
theirrightsandinademocraticcountrywithrespect
to law, the acknowledged rights are sufficient to
allow a dignified life. If the rights still does not
exist, they must be won over by civil organizations
and community. Rights-based advocacy ensures
that services to fulfill community rights will run
beyond the period of advocacy and this is quite
different from an assistance-based approach, in
which services to channel aid will stop when the
program ends due to certain considerations.

6

7
Definition &
International
Framework
Right Base Approach
Right base approach can be traced from the
Universal Declaration of Human Right and other
agreements that make up the International Bill of
Rights. Rights that included in that agreement are
right for life, liberty and security of person; right
to equality before the law; right to free primary
education; right to work and equal pay; the right to
freedom of movement, residency and nationality;
to freedom of thought, conscience, belief, religion
and the right to hold and express opinions without
interference. countries that have agreed to these
basic human rights have legal and moral obligation
to guarantee implementation of the right. They are
the legal ”duty bearer’s” of these right and must
honor their obligations to their citizens. By this
declaration the right of community that calls as
human right based.
A human right-based approach is a conceptual
framework for the process of human development
that is normatively based on international
human rights standards, protect human, address
discrimination practices and unjust distributions
ofpowerthatimpededevelopmentprogress.Under
humanright-basedapproach,theplans,policiesand
processes of development are anchored in system
ofrightsandcorrespondingobligationsestablished
by international law. By that, it can promote the
sustainability of development, empowerment,
especially to the most marginalized, to participate
in policy formulation and hold accountable those
who have a duty to act.
A rights-based approach recognizes that the
cause of poverty, suffering and injustice lies on
violations of peoples’ rights, and that those to
whom the basic human rights are denied have
a legally enforceable position from which to
advocate for change. The paradigm is transformed
from one where people are in need to one where
people are being denied what is fundamentally and
legally their right. Hence, main task in adopting a
rights-based approach to community development
work is to determine how the issues identified by
a community correspond with the basic human
rights, and to explore how best to apply these
rights within the local, national or international
field. Furthermore, rights-based approaches aim
to strengthen the ability of states to fulfill their
obligations as duty-bearers and increase the
opportunities for constructive dialogues with
rights-holders.
Free Prior Inform Consent (FPIC)
One of the terms of right base advocacy is
Free, Prior, Inform and Consent (FPIC). FPIC is
a mechanism and a process wherein Indigenous
Peoples (IPs) undertake their own or independent
collective decision on ma ers that affect them, as
an exercise of their right to their land, territories
and resources; their right to self-determination;
and cultural integrity. FPIC was establish as a so
law in United Nations Declarations on the Rights
of Indigenous Peoples (UNRIP). The objective of
FPIC are to engage dialogue with communities and
come to an agreement on when and where to carry
out activities that may have a significant impact on
local people and the environment, and the nature
of related compensation and benefits packages,
addressing the power differentials in negotiations,
where communities all too o en have a much
weaker voice than government and companies.4
4 Abbi Buxton and Emma Wilson, FPIC and Extractive Industries.
IIED:UK. 2013, page 4

8
While there is no universal definition, FPIC
generally requires that communities must be
adequately informed about development projects
andshouldbegivenopportunitytoapproveorreject
projects free from undue pressure. FPIC is a right
held by Indigenous Peoples under international
law, and is emerging more broadly as a principle
of best practice for sustainable development. FPIC
also can look by international and regional level.
Below the exposure of those frameworks:
a. International Level
The International Labor Organizations’
Convention on Indigenous and Tribal Peoples in
Independent Countries - 169/1989 refers to the
principle of free and informed consent in the
context of relocation of Indigenous Peoples from
their land in its article 6. In articles 6, 7 and 15, the
convention aims at ensuring that every effort is
made by the States to fully consult with Indigenous
Peoples in the context of development, land and
resources.5
The UN Dra Declaration on the Rights of
Indigenous People (‘UNDD’) (Sub Commission
resolution 1994/45, annex) is an emerging
instrument on the rights of Indigenous Peoples
that explicitly recognizes the principle of FPIC in
its articles 1, 12, 20, 27 and 30. UNDD refers to the
Indigenous Peoples right to determine and develop
priorities and strategies for the development or
use of their lands, territories and other resources,
including FPIC from state in connection with
development and utilization of surface and
subsurface resources such as:
a) Article 10 on forced relocation;
b) Article 12 on culture and intellectual property;
c) Article 20 vis-à-vis legislative and
administrative measures taken by the States
d) Article 27 with regards to indigenous peoples’
lands, territories and resources,
e) Article 30 with development planning.6
5 Ronald busiinge, FPIC Concepts to responsible mining in
sustaining rivers and community, h p://archive.riversymposium.
com/index.php?element=BUSIINGE
6 Parshuram Tamang. An Overview of the Principle of Free, Prior
and Informed Consent and Indigenous Peoples in International
The UN Commi ee on the Elimination of
Racial Discrimination (‘CERD’) made observations
and general recommendations on State obligations
and indigenous rights under convention and calls
upon States to ‘ensure that members of Indigenous
Peoples have rights in respect of effective
participation in public life and that no decisions
directly relating to their rights and interests are
taken without their informed consent’ (GR XXIII
51 concerning Indigenous Persons adopted at the
Commi ee’s 1235th Meeting, 1997).
In 2000, the CERD reiterated, its
recommendation that the State party ensure
effective participation by indigenous communities
in decisions affecting their land rights, as required
under article 5C of the Convention and the General
Recommendations XXIII of the Commi ee, which
stresses the importance of ensuring the ‘informed
consent’ of indigenous peoples.7
The Convention on Biological Diversity 1992
(‘CBD’) in its article 8(J) calls on contracting States,
to respect, preserve and maintain knowledge,
innovations and practices of indigenous and local
communities and promote their wider application
with the approval and involvement of the holders
of such knowledge, innovation and practices.
The United Nations Conference on
Environment and Development 1992 accepted
Indigenous Peoples as a Major Group for the
implementation of Agenda 21. The Rio Declaration,
in Article 22, explicitly noted that Indigenous
Peoples and their communities and other local
communities have a vital role in environmental
management and development because of their
knowledge and traditional practices. States should
recognize and duly support their identity, culture
and interests and enable effective participation.
Agenda 21 and Forest Principles recognize:
indigenous rights to land, intellectual and cultural
property and to maintain their customary and
administrative practices; the need for greater
participation; the value of their involvement in
forest management and conservation.
and Domestic Law and Practices. New York: 2005
7 Opcit, page 5

9
b. Regional Level
The Dra American Declaration on the Rights
of Indigenous Peoples of the Organization of
American States (‘OAS’) in its articles XVII AND
XXIII states that the States obtain FPIC prior to
the approval of any project affecting IPs lands,
territoriesandresources,particularlyinconnection
with the development, utilization or exploration of
mineral, water or other resources.
The Inter-American Commission on Human
Rights (‘IACHR’) has developed considerable
jurisprudence on FPIC. The Commission has stated
that the Inter-American human rights law requires
‘special measures to ensure recognition of the
particular and collective interest that indigenous
people have in the occupation and use of their
traditional lands and resources and their right not
to be deprived of this interest except with fully
informed consent’. In 2003, the IACHR stated that
FPIC is generally applicable ‘to decisions by the
State that will have an impact upon indigenous
lands and their communities, such as the granting
of concessions to exploit the natural resources of
indigenous territories’.8
The Inter-American Development Bank’s
(‘IADB’) 1990 Strategies and Procedures on Socio-
Cultural Issues will not support projects affecting
tribal lands and territories, unless the tribal society
is in agreement’. FPIC is already included in the
IADB’s policy on Involuntary Rese lement.
In 1998, the Council of Ministers of European
Union adopted a Resolution entitled, Indigenous
Peoples within the Framework of the Development
Cooperation of the Community and Member
States. It provides that ‘indigenous have the right
to choose their own development paths, which
includes the right to objects, in particular in their
traditional areas. This was reaffirmed in 2002 by
the European Commission.
Meanwhile, in SEA regions adopted the first
regional human rights instrument on November,
18th
,2012,calledasASEANHumanRightDeclaration
8 Fergus Mackey, A Guide to Indigenous Peoples’ Rights in the Inter-
American Human Rights System. FPP: 2001
(AHRD) - Phnom Penh Statement.9
The AHRD is the
first standard se ing, political document to codify
the basic human rights and fundamental freedoms
in ASEAN member states must respect, promote
and protect. This declaration is also as embodiment
of the commitment of the governments of ASEAN
to safeguard the human rights and fundamental
freedoms of the people of the ASEAN. AHRD in
line with ASEAN’s commitment in the Universal
Declaration on Human Rights.
In the other side, the Association of Southeast
Asian Nations Dra Agreement on Access to
Biological and Genetic Resources (2000) in
its preamble acknowledges the fundamental
principle that the prior informed consent of the
Member State and its Indigenous Peoples and
local communities embodying traditional lifestyles
would have to be secured before access can take
place.10
c. National Level
The Philippines, Malaysia, Australia, Venezuela,
Peru, etc, have national legislation on the free, prior
and informed consent of Indigenous Peoples for all
activities affecting their lands and territories, for
example.
In Philippines, the Indigenous Peoples Rights
Act(1997)recognizestherightofFPICofIndigenous
Peoples for all activities affecting their lands and
territories including:
a) Exploration, development and use of natural
resources;
b) Research-bio prospecting;
c) Displacement and relocation;
d) Archaeological explorations;
e) Policies affecting Indigenous Peoples such
Executive order 263 (Community Based Forest
Management);
f) Entry of Military.
9 AICHR: What you need to know (2nd edition). 2012, The ASEAN
Secretariat : Jakarta
10 Policy Paper. Framework for incorporating indigenous
communities within the rules accompanying the Sabah
Biodiversity Enactment 2000. November : 2004

10
Venezuela adopted a law on Biodiversity in
May 2000. Article 39 provides the conservation
of cultural diversity through the recognition
and promotion of traditional knowledge (‘TK’)
and Article 44 has provision that TK holders
can oppose the granting of access to genetic
resources or materials or TK projects in their
territories or ask halt to the activities that they
feared might affect their cultural heritage and
biological diversity.11
Malaysia, Sarawak State
passed the Sarawak Biodiversity Centre Ordinance
1977, and then the 1998 Sarawak Biodiversity
(Access, Collection and Research) Regulations.
The Sarawak Council is responsible for regulating
access, collection, research, protection, utilization,
and export of the State’s biological resources. In
2004, the Sabah State of Malaysia in its ‘Framework
for incorporating indigenous communities within
the rules accompanying the Sabah Biodiversity
Enactment 2000’ created a system rule that
ensures Indigenous Peoples ‘shall all times and
in perpetuity, be legitimate creators, users and
custodians of traditional knowledge, and shall
collectivelybenefitfromtheuseofsuchknowledge.
In five states of Australia, consent has been
obtained through statutory indigenous-controlled
Land Councils in the mining area for more than 30
years. These consent procedures were reviewed by
the National Institute of Economic and Industry
Research in 1999, which found that they had been
successful in safeguarding Aboriginal control over
Aboriginal land and have also provided a process
of negotiation by which an increasing proportion
of Aboriginal land in the Territory has been made
available for mineral exploration. Overall, the
main term of FPIC is participatory. Participatory
was needed because in FPIC’s process the
decisions that taken will lead to more sustainable,
socially acceptable and politically viable resource
development and also providing a balanced
consideration of the government, companies and
civil society.
11 Gupta, Anil K. (2004), WIPO-UNEP Study on the Role of Intellectual
Property Rights in the Sharing of Benefits Arising from the Use of
Biological Resources and Associated Traditional Knowledge, WIPO
and UNEP.Study No. 4.
FPIC on the ICMM’s Framework View
Beside of those framework, there also other
frameworkandviewaboutFPIC. TheInternational
Council on Mining and Metals (ICMM) that
established in 2001 to improve sustainable
development performance in the mining and
metals industry. The main objective of ICMM is
to constructive relationships between mining and
metals companies and Indigenous that are based
on mutual respect, meaningful engagement, trust
and mutual benefit.
InICMM’sframework,FPICcomprisesaprocess
and an outcome. Through this process Indigenous
Peoples are: (i) able to freely make decisions
without coercion, intimidation or manipulation;
(ii) given sufficient time to be involved in project
decision making before key decisions are made
and impacts occur; and (iii) fully informed about
the project and its potential impacts and benefits.
The outcome is that Indigenous Peoples can give
or withhold their consent to a project, through a
process that strives to be consistent with their
traditional decision-making processes while
respecting internationally recognized human
rights and is based on good faith negotiation. The
commitments in this position statement relating
to consent apply to new projects and changes to
existing projects that are likely to have significant
impacts on indigenous communities. The position
statement will not apply retrospectively. Where
both indigenous and non-Indigenous Peoples are
likely to be significantly impacted, members may
choose to extend the commitments embodied in
this position statement to non-indigenous people.

11
Figure 3: ICMM vision and Commitments
On the ICMM framework, all the members
recognize that:
1. Indigenous Peoples o en have profound and
special connections to, and identification with,
lands and waters and these are tied to their
physical, spiritual, cultural and economic well-
being. They may also have valuable traditional
knowledge and experience in managing
the environment in a sustainable manner.
Indigenous Peoples in many regions of the
world have been historically disadvantaged
and may o en still experience discrimination,
high levels of poverty and other forms of
political and social disadvantage. Mining and
metalsprojects canhave significantimpacts on
local communities, both positive and negative.
2. The interests of Indigenous Peoples in mining
and metals projects are generally recognized as
one or more of the following: owners of formal
title to land or recognized legal interests in
land or resources; claimants for ownership
of land or resources; customary owners or
occupants of land or resources; users of land or
resourcesforpurposessuchashunting,fishing,
gathering of seeds/fruits and medicines, or
for spiritual or ritual purposes; in material
objects or resources of cultural significance;
in landscapes which have special significance
because of association, tradition or beliefs;
members of host communities whose social,
economic and physical environment may be
affected by mining and associated activities.
3 . Indigenous Peoples have individual and
collective rights and interests and it is
internationally recognized that their rights
should be protected by governments and
respected by companies. Two of the key
international instruments in this area are
International Labor Organization (ILO)
Convention No. 169 on Indigenous and Tribal
Peoples (1989), and the UN Declaration on
the Rights of Indigenous Peoples (UNDRIP)
adopted by the UN General Assembly in
September 200712
. “UNDRIP sets out rights
that countries should aspire to recognize,
guarantee and implement” and “establishes
a framework for discussion and dialogue
between Indigenous Peoples and States”13
4. Successful mining and metals projects require
thesupportofarangeofinterestedandaffected
parties. This includes both the formal legal and
regulatory approvals granted by governments
12 As of October 2012, 22 countries had ratified ILO 169 which is legally
binding in those states.
13 As stated in the UN Development Group’s Guidelines on
Indigenous Peoples’ Issues (2008).
ICMM member commitments
10 principles for sustainable development + 6 position statements
1. Implement ethical business
practices and apply good
corporate governance
2. Integrate SD in corporate
decision-making
3. Uphold fundamental human
rights
4. Manage risks based on sound
science
5/6.Improve environment, health
and safety performance
continuously
7. Conserve biodiversity &
contribute to integrated land
use planning
8. Encourage a life cycle approach
to materials management
9. Contribute to community
development
10. Publicly report, independently
assure and engage openly and
transparently
Mining and Protected Areas
Mining: Partnerships for
Development
Climate Change
Mining and Indigenous
Peoples
Mercury Risk Management
Transparency of Mineral
Revenues
ICMM at a glance
ICMM Vision
leading mining and
metals companies
working together
and with others
to strengthen
the contribution
to sustainable
development
Fundamental
implication
creating value for
shareholders while
simultaneously
creating value for
the communities and
societies in which they
operate
Our role: a catalyst for improving environmental and
social performance in the mining and metal’s industry
t
Source: Mining for Development (Presentation to the Intergovernmental Forum on Mining, Minerals,
Metals and Sustainable Development), Fernandes Diez (www.icmm.com)

12
and the broad support of a company’s host
communities. Indigenous Peoples o en have
cultural characteristics, governance structures
and ways of interacting and decision making
that sets them apart from the non-indigenous
population. This requires companies to engage
in ways that are culturally appropriate and to
pay special a ention to the capacities, rights
and interests of Indigenous Peoples, within the
context of broader community engagement.
States have the right to make decisions on
the development of resources according to
applicable national laws, including those laws
implementing host country obligations under
international law. Some countries have made
an explicit consent provision under national
or sub-national laws. In most countries
however, “neither Indigenous Peoples nor
any other population group have the right to
veto development projects that affect them”,
so FPIC should be regarded as a “principle to
be respected to the greatest degree possible in
development planning and implementation”.14
5. States also have an important role to play
in the process of engaging with Indigenous
Peoples. They may be involved in determining
which communities should be considered
indigenous, in shaping the process for
achieving FPIC and in determining how this
relates to regulated processes for ensuring
community participation in decision making.
Given their role in balancing the rights and
interests of Indigenous Peoples with the
wider population, states may also play an
important role in supporting the resolution
of disagreements that may arise between
Indigenous Peoples and companies in the
pursuit of FPIC.
6. In some countries, the term indigenous may
be controversial and local terms may be in
use that is broadly equivalent (such as tribal
peoples, first peoples, native people, and
aboriginal people). In other situations, there
may be no recognition of indignity by states,
14 As expressed in the UN’s Department of Economic and Social
Affairs Resource Kit on Indigenous Peoples’ Issues (2008).
or the term may have negative associations
that discourage people from acknowledging
indigenous identity. Irrespective of the
local context, ICMM members reject any
discrimination or disadvantage that may be
related to culture, identity or vulnerability and
will seek to apply the principles embodied in
this position statement to groups that exhibit
the commonly accepted characteristics of
Indigenous Peoples.15
ICMM also have commitments under the
ICMM Sustainable Development Framework,
ICMM member companies commit to:
1. Engage with potentially impacted Indigenous
Peoples with the objectives of: (i) ensuring
that the development of mining and metals
projects fosters respect for the rights, interests,
aspirations, culture and natural resource-
based livelihoods of Indigenous Peoples; (ii)
designing projects to avoid adverse impacts
andminimizing,managingorcompensatingfor
unavoidableresidualimpacts;and(iii)ensuring
sustainable benefits and opportunities for
Indigenous Peoples through the development
of mining and metals projects.
2. Understand and respect the rights, interests
and perspectives of Indigenous Peoples
regarding a project and its potential impacts.
Social and environmental impact assessments
or other social baseline analyses will be
undertaken to identify those who may be
impacted by a project as well as the nature
and extent of potential impacts on Indigenous
Peoples and any other potentially impacted
communities. The conduct of such studies
should be participatory and inclusive to help
build broad cross-cultural understanding
between companies and communities and
in support of the objectives described in
commitment 1 above.
3. Agree on appropriate engagement and
consultation processes with potentially
15 As defined in ILO 169 and outlined in section 1.3 of ICMM’s Good
Practice Guide: Indigenous Peoples and Mining (2010).

13
impacted Indigenous Peoples and relevant
government authorities as early as possible
during project planning, to ensure the
meaningful participation of Indigenous
Peoples in decision making. Where required,
support should be provided to build
community capacity for good faith negotiation
on an equitable basis. These processes should
strive to be consistent with Indigenous
Peoples’ decision-making processes and reflect
internationally accepted human rights, and be
commensurate with the scale of the potential
impacts and vulnerability of impacted
communities. The processes should embody
the a ributes of good faith negotiation
and be documented in a plan that identifies
representatives of potentially impacted
indigenous communities and government,
agreed consultation processes and protocols,
reciprocal responsibilities of parties to the
engagement process and agreed avenues
of recourse in the event of disagreements
or impasses occurring as describe on
commitment 6 below. The plan should
also define what would constitute consent
from indigenous communities that may be
significantly impacted. Agreed engagement
and consultation processes should be applied
in collaboration with potentially impacted
indigenous communities, in a manner that
ensures their meaningful participation in
decision making.
4. Work to obtain the consent of indigenous
communities for new projects (and changes
to existing projects) that are located on lands
traditionallyownedbyorundercustomaryuse
of Indigenous Peoples and are likely to have
significant adverse impacts on Indigenous
Peoples, including where relocation of
Indigenous Peoples and/or significant adverse
impacts on critical cultural heritage are likely
to occur16
. Consent processes should focus on
reaching agreement on the basis for which a
project (or changes to existing projects) should
proceed.Theseprocessesshouldneitherconfer
16 Relocation of Indigenous Peoples and impacts on critical cultural
heritage should be avoided to the extent possible
veto rights to individuals or sub-groups nor
require unanimous support from potentially
impacted Indigenous Peoples (unless legally
mandated). Consent processes should not
require companies to agree to aspects not
under their control.
5. Collaborate with the responsible authorities
to achieve outcomes consistent with the
commitments in this position statement, in
situations where government is responsible
for managing Indigenous Peoples’ interests
in a way that limits company involvement.
Where a host government requires members
to follow processes that have been designed
to achieve the outcomes sought through this
position statement, ICMM members will not
be expected to establish parallel processes.
6. Address the likelihood that differences of
opinionwillarise,whichinsomecasesmaylead
to setbacks or delays in reaching a negotiated
agreement in good faith. Companies and
potentially impacted indigenous communities
should agree on reasonable tests or avenues
of recourse at the outset, to be applied where
differences of opinion arise. This might include
seeking mediation or advice from mutually
acceptable parties. Where commitment 4
applies and consent is not forthcoming despite
the best efforts of all parties, in balancing the
rights and interests of Indigenous Peoples
with the wider population, government might
determine that a project should proceed and
specify the conditions that should apply. In
such circumstances, ICMM members will
determine whether they ought to remain
involved with a project.
Right to Information (RTI)
Information is a fundamental need both for
individuals and for society at large. The right to
information also consider as a basic human right,
and also the essential of good governance and
a properly functioning democracy. Freedom of
Information (FOI) plays a key role in supporting
public oversight of government, and proper
management of information is an essential part

14
of efforts to create an informed society. All public
bodies, including the legislature, executive, and
judiciary, have responsibility for ensuring freedom
of information, and this responsibility also extends
to nongovernmental organizations involved in the
delivery of public services.17
The right to information is also one of the
founding ideas behind a broader movement for
openandaccountablegovernmentwhichisgaining
ever more impetus and recognition. A notable
development in this area has been the launching
of the Open Government Partnership in 2011 which
has the potential to provide a new opportunity for
civil society to push for greater recognition and
respect for the right to information.
Generally, right to information includes the
right to:
1. Inspect works, documents, and records.
2. Take notes, extracts or certified copies of
documents or records.
3. Take certified samples of material.
4. Obtain information in form of printouts,
diske es, floppies, tapes, video, and casse es
or in any other electronic mode or through
printouts.
There are some principles of the right to
freedomofinformationthatsetoutbynationaland
international regimes which must be considered,
such as:
Firstly, maximum disclosure which consists of
is presumption that all information that held by
public bodies should be subject to disclosure and
thatthispresumptionmaybeovercomeonlyinvery
limited circumstances. Moreover, this principle
encapsulates the basic rationale underlying the
very concept of freedom of information and ideally
it should be provided for in the Constitution to
make it clear that access to official information
is a basic right. The overriding goal of legislation
should be to implement maximum disclosure in
practice.Publicbodieshaveanobligationtodisclose
17 Ahmad Faisol, dkk. Fulfilling The Right To Information: Yayasan
TIFA, 2010
information and every member of the public has a
corresponding right to receive information
Secondly, obligation to publish the principle
and make public bodies which have an obligation to
publish information. The freedom of information
implies not only those public bodies accede to
requests for information but also publish and
disseminate widely documents of significant
public interest, subject only to reasonable limits
based on resources and capacity. The information
should be published will depend on the public
body concerned. The law should establish both a
general obligation to publish and key categories
of information that must be published. Public
bodies’ should be under an obligation to publish
the following categories of information:
a) operational information about how the public
body functions, including costs, objectives,
audited accounts, standards, achievements and
so on, particularly where the body provides
direct services to the public;
b) information on any requests, complaints or
other direct actions which members of the
public may take in relation to the public body;
c) guidance on processes by which members of
the public may provide input into major policy
or legislative proposals;
d) the types of information which the body holds
and the form in which this information is held;
and
e) the content of any decision or policy affecting
the public, along with reasons for the decision
and background material of importance in
framing the decision.
Thirdly, promoting open government, it means
that the public bodies must actively campaign and
promote the Open Government. The practical of
these principle activities will vary from country
to country, depending on factors such as the way
the civil service is organized, key constraints to the
free disclosure of information, literacy levels and
the degree of awareness of the general public.

15
Case Study from
Southeast Asia
Case Study of Indonesia
History of citizen participation in reform
era (examples on budget, public policy making,
national development planning as well as on EI
sectors-please also mention the momentum of
establishment the FOI law, Mineral and Coal Law,
Environmental Law as well as Constitutional Court
Decree, the issuance of Freedom of Information
Law, Mineral and Coal Mining Law, Environmental
Law, etc., reinforced by Consultative Assembly
Decree No. IX of 2001 on Agrarian Reform and
NaturalResourcesManagementandConstitutional
Court Decree on judicial review on Mineral and
Coal Mining Law and another Constitution
Court decree on judicial review on Forestry Law).
Under Suharto regime, community and advocacy
activists carried out advocacy works by helping
the communities in defending and fighting over
their rights. An example of this in extractive
industries is pertaining to the case of the mine ran
by PT Freeport Indonesia. In response to strong
protest from Amungme community due to the
loss of their living spaces, PT Freeport Indonesia
approved of January Agreement in January 1974.
The emergence of January Agreement is said as an
important historic moment for the ethnic group as
it served as a formal agreement between Freeport
and Amungme community under supervision
of Soeharto regime as represented by Papua
provincial government. In this deal, the ethnic
group had to voluntarily release its land to be made
a mining site and in return, the firm provided social
facilities and job opportunities. The facilities were
built within five years, absorbing US$14 million
each year.
Amiruddin (2003) stated that the content of
the agreement did not substantially bring any
improvement to the lives of Amungme ethnic
group because its implementation depended
largely on the planning by regional government,
central government in Jakarta and Freeport. As
a result, Amungme people was no more than an
object of development for either the government or
Freeport.18
This case proves that sizeable aids given
to a community is not effective when the people is
positioned as an object of donors or charity actions
instead of a party whose rights must be fulfilled.
The situation may exacerbate when the aids
shrinks. The problem faced by Amungme ethnic
group was hard to avert since under Soeharto
rule the rooms for people’s participation was very
limited. Mining activities are a necessity that can
be rejected by the community as it complies with
Law No. 11 of 1967 on Mining Fundamentals.
A political change a er Soeharto stepped
down paved a way strengthens community rights
People’s Consultative Assembly Decree No. IX of
2001 on Agrarian Reform and Natural Resources
Management. As far as extractive industries
concerned, the people’s rights to participation
were stipulated by Forestry Law, Oil and Gas Law
and Mineral and Coal Mining Law. This effort was
also justified by Constitutional Court Decree on
judicial review on Mineral and Coal Mining Law
and another Constitution Court decree on judicial
review on Forestry Law.
Not of least importance was the existence of
Law No. 14 of 2008 about Freedom of Information
Law. Nevertheless, it was not until 2013 that the
government through the Energy and Mineral
Resources Ministry decided whether mining
contracts fell under the category of public
information so that communities had to fight
18 Amiruddin&Aderito Jesus de Soares, PerjuanganAmungme
Antara Freeport dan Militer , ELSAM, 2003, www.elsam.or.id/
downloads/1296452697_Perjuangan_Amungme.pdf

16
to know if their rights were guaranteed in
mining contracts sealed by the government and
companies. Mineral resources and coal are owned
by the state and claimed to be used as extensive as
possible to create people’s prosperity. But in fact,
the state controls them and does not offer wide
opportunities for participation to the people.
Community-rights based approach on
extractive industries is hard to apply in
undemocratic countries and to offer rooms for
the community to truly participate. Following the
fall of New Order regime, chances are available
for the people to defend their rights through
this approach. Advocacy by civil society then
put urgency to regulation changes. Among
the amended rules were People’s Consultative
Assembly Decree No. IX of 2001 on Agrarian and
Natural Resources Management Reform. The
decree stated that agrarian reform and natural
resources management must be executed in line
with principles (among others):
a) highly respect and uphold human rights;
b) develop democracy, law compliance,
transparency and optimization of civil
participation;
c) Acknowledge and respect rights of indigenous
people and national cultural diversity based on
agrarian and natural resources.
The advocacy to community using rights-based
approach further continued through material
review von some rules, such as Mineral and Coal
Mining Law and Forestry Law, which aimed to
ensure community rights stipulated there have
clearly acknowledged people’s rights. Therefore,
advocacy to the people goes beyond seeing their
needs by seeking rights which are violated,
rehabilitating those rights and confirming them
in regulations, such as by legal review. Paralegal
activities and provision of information about the
rights of people impacted by extractive industry
becomes possible.
History of Community Right Advocacy &
FPIC of Indonesia
Under Soeharto’s rule, Law No. 11 of 1967 was
the most important policy in extractive resources
management. The law did not provide rooms
for the people to exercise FPIC. Once the state
determined an area to be a mining site, inhabitants
living nearby had to give in and accept it. It was
impossible to apply rights-based approach because
the government considered community approval
of the mining plan as unnecessary based on its
claim that the mining was to serve public interests
despite being ran by private sector.
Following the fall of Soeharto, the struggle of
the community to protect their living spaces from
extractive activities intensified. Mining permits
issued in the period surged, thereby community
participation gained more importance, starting
from people’s demand in the field to policy changes
and legal measures, included a material review to
Mineral and Coal Mining Law which aimed to allow
people’s participation. Another successful effort
was a material review to Forestry Law Number
41 of 1999 to enable indigenous people to fully
manage forests under their indigenous law. As
these principles were put into practice, extractive
industries planning to utilize forests belonging to
an indigenous community must comply with FPIC
mechanism to secure approval from the people.
Regulation Framework in Indonesia on FPIC
Indonesian Constitution has laid out a general
foundation for citizens to defend their rights over
natural resources, living spaces and livelihood.
However, this acknowledgement is too general and
is not detailed into existing laws and regulations.
The general regulatory framework as illustrated
in the diagram below comprises 4 major layers: (1)
Constitution, (2) People’s Consultative Assembly
Decree No. IX of 2001 on Agrarian Reform and
Natural Resources Management(3) several laws
that arrange natural resources management
(mining, oil and gas, forestry) along with Freedom
of Information Law, and (4) Constitutional Court
Decrees, including on mineral and coal mining and
forestry.

17
Constitution
• Every citizen has the right to work and livelihood proper to human dignity. (Article 27 clause 2)
• Every person has his own property rights and those cannot be taken away arbitrarily by anyone. (Article 28H
clause 4).
• Every person has the right to live in prosperity both physically and mentally, have domicile, obtain good and
healthy living environment and access medical services.(Article 28H clause 1).
• Land, waters and natural riches contained therein shall be controlled by the State and exploited to the greatest
beneﬁt of the people. (Article 33 clause 3)
People’s Consultative Assembly Decree No. IX of 2001 on Agrarian Reform and Natural
Resources Management.
Agrarian reform and natural resources management must be executed in compliance
with principles of respecting and upholding human rights, developing democracy, legal
obedience, transparency and optimization of people’s participation.
Law No. 14 of 2008
on Freedom of
Information
Every person has the
right to:
a. see and know Public
Information;
b. a end open public
meetings to access
Public Information;
a. obtain copies of
Public Information
by request in line
with this Law; and/
or
b. Disseminate
Public Information
according to laws.
(Article 4)
Law No. 4 of 2009 on
Mineral and Coal Mining
The appointment of
Mining Areas is carried
out in a transparent,
participative and
responsible manner;
integrally by
paying a ention to
opinion from related
government institutions,
the people, and by
taking considerations
on ecological, economic,
socio-cultural and
environmental aspects;
(Article 10).
Law No. 22 on Oil and Gas
1. Cooperation contracts
must include,
among others, the
development of the
people in surrounding
areas and guarantee
of indigenous people’s
rights; (Article 11)
2. Oil and gas business
activities cannot
be conducted in:
burial places, sacred
sites, public places,
public facilities
and infrastructure,
natural conservancy,
cultural heritage and
land belonging to
indigenous people;
(Article 33)
Law No. 41 of 1999 on Forestry
(1) The community shall be
entitled the rights to enjoy
environmental quality that
the forests produce.
(2) The community can also:
a. utilize forest and forest
produce according to
prevailing laws;
b. know forest designation plans,
forest produce utilization and
information on forestry;
c. provide information,
suggestions and consideration
as well in forestry
development; and
d. supervise execution of
forestry development both
directly and indirectly.
(Article 68)

18
Constitutional Court
Decree on Material
Review on Law No.
4 of 2009 on Mineral
and Coal Mining1
(Constitutional Court
Decree No. 32 of 2010)
Law No. 4 of 2009 on
mineral mining and coal
mining conditionally
contradicts the
Constitution of 1945
along the phrase “…
paying a ention to
community’s opinions”
as it is not translated
into, “must protect,
respect and fulfill
the interests of the
community whose both
areas and owned land
shall be included in
mining sites one that
will be impacted.”;
Constitution Court Decree on
Material Review on Law No. 41
of 1999 (Constitutional Court
Decree No. 35 of 2012)
Indigenous Forest is one which
is located within customary
law territories. The ruling halts
monopoly of state control over
forests and lays a legal basis
for indigenous community to
manage forest areas.
Civil society and environmental organizations
have adopted these regulatory tools to strengthen
Prior Informed Consent for the community.
However, Indonesia still needs more detailed and
concrete rules which can protect the community
rights by way of Free Prior Informed Consent.
Role of CSO on Raising Awareness and
Empowering the Community
The case of Kulonprogo, Yogyakarta Special
Province
In general, people in Kulonprogo make a living
by farming. They spend their free time to breeding
animals, such as cows, goat and ducks and usually
they own livestock. They also grow banana plants
and mango trees. They help each other, such as in
cleaning up streets together.
In 2005 a plan to open iron sand mines was
introduced and the community rejected it. The
proposal secured approval only from people who
live outside the areas of the planned mining sites.
It was set to impact three sub-districts: Galur,
Panjatan and Wates.
People in these sub-districts refused the plan
to make their areas iron sand mines because their
livelihood totally relies on farming, which has been
inherited from their ancestors. Farming sufficed
to support the livelihood of those 50,000 people.
They pointed out the positive effect of improved
farming: in 1970s none of them had studied in high
schools or universities, but the situation changed
a er they worked on areas along the coastline,
leading to economic improvement. Many members
of the community can now pursue education in
universities, even amid rising educational costs.
One of the inhabitants named Maryanto said
that they would not quit farming because they
preferred to be a farmer than an iron sand miner.
They did not need to obtain school certificates or
deal with rigid work schedule. What they did also
created jobs to other people. Chili pickers from
three impacted sub-districts gathered to defend
their living spaces and blocked the mining plan;
they set up the Community of Coastland Farmers
(PPLP) in April 2006.
They dealt with miner PT. Jogja Magasa Iron
which secured a Work Contract (KK) it signed

19
with the government of Indonesia on November 4,
2008. The iron sand mining project in Kulonprogo
Regency, Yogyakarta Special Province, was said to
develop “Integrated Iron Making Industry”. The Work
Contract was the first of its kind in Java Island as
well as the first issued since the economic crisis
and the implementation of regional autonomy.
The dra of the Work Contract had been
recommended by the Investment Coordinating
Board (BKPM) and consulted to the House of
Representatives of the Republic of Indonesia.
Nevertheless, the community surrounding the
mining area had never been invited to involve or
asked for approval before the contract was made.
PTJogjaMagasaIronis30percentownedbyPT
Jogja Magasa Mining of Indonesia and 70 percent
held by Indo Mines Limited of Australia. Iron
reserves found in the iron sand in the location
total 33.6 million tons Fe and production will total
1 million tons each year. The reserves are obtained
from iron sand concentrates. The project will
produce iron sand by way of open pit mine and the
output will be passed to concentrate processing
and smelting to generate pig iron with Fe content
of more than 94%.According to the plan, the firm
would have started mining activities in 2011 and
commenced pig iron production in 2012. However,
due to the protest from the farming community,
the project has yet to kick off.
In the construction phase, the firm will take
up 5,000 local workers, while in the initial phase
of production it will employ 3,000 local workers.
This figure is much lower than 50,000 farmers to be
affected by its investment, which cannot fully be
employed by the mining industry.
The investment of the firm will total US$ 1.1
billion, comprising US$5 million for stockpiles,
US$ 6 million for rail sliding, US$350 million for
construction of 350 MW power plant, US$10 million
for 10 million and US$600 million for mining
investment. The project is expected to annually
contribute US$20 million to state revenue through
tax, US$ 11.25 million from royalty, US$7 million
from local financing and US$55 million through
operating expenditure.
In the first 10 years PT Jogja Magasa Iron
will contribute 1.5% of its sales each to Regional
DevelopmentandCommunityDevelopment,which
a er the period will be raised to 2%. Nevertheless,
the people have viewed that this offer will not
bring prosperity for them and instead they have
chosen farming in coastal areas. The community
defends their living spaces against mining through
direct rejection conveyed to related government
institutions and education for the people.
The community states:
“Since 2006, we, the coastal inhabitants of
Kulonprogo Regency, have struggled to defend
our Human Rights (as guaranteed by Law No. 39
of 1999), Economic, Social and Cultural Rights (as
guaranteedbyLawNo.11of2005),andRightstoLand
(as guaranteed by Law No. 5 of 1960). The presence
of these rights and their future existence are
under threat due to the policies of the Kulonprogo
Regency government to mine iron sand and build
a steel factory in an area which is se led by, and
provides a livelihood for, its inhabitants. Just as it
was known that it would, this mine has triggered a
conflict between the people and the government,
with no end within sight.”19
The process that determined their living spaces
as a mining site did not comply with prevailing
regulations. The Work Contract of PT Jogja
Magasa Mining was made when the Spatial Plan
(RTRW) stated that the coastal region was designed
as an area for agriculture, tourism and fishery. The
special commi ee of the 2009 Spatial Plan from
Yogyakarta Regional House of Representatives
clearly pointed out that the area was set for mining.
Contrary to this ruling, the provincial government
and the Energy and Natural Resources Ministry
unilaterally appointed the region as a mining area.
Yogyakarta is the only province in Indonesia
which is controlled by feudal power in accordance
toLawNo.13of2012.Thepeoplewhorefusedmining
faced intimidation and criminalization. A group of
people a acked security posts and neighborhood
security quarters (pos kamling) established by the
19 h p://325.nostate.net/library/position-paper-summary.pdf

20
people. This occurred in 2008. Around 200 people
carrying weapons ruined public facilities, such as
neighborhood security quarters, guard posts and
people’s houses. Legal measures were taken by
the police in response to the community’s report,
but unfortunately they did not target key actors,
according to its further report to Commission III of
the House of Representatives. In addition to police,
the people also filed the incident to the National
Commission on Human Rights (Komnas HAM)
of the Republic of Indonesia. Unfortunately, they
could not achieve the expected outcome.
Later in 2000, the local people were also
criminalized upon the allegation of violating the
Article 355 of the Criminal Code (KUHP) by robbing
rights of freedom of other people. Tukijo, one of
the leaders who organized the community’s fight
against the iron sand mine, was said as legally
convicted and he was sentenced to 3 years in prison.
The Kulonprogo people can struggle for their
rights as they maintain good organizational skills.
The community founded an organization named
the Community of Coastland Farmers (PPLP) in
2007. This community organization tried to be
less reliant on non-governmental organizations.
However, they opened a chance to cooperate
with such organizations in their fight. It teamed
up with the Yogyakarta Legal Aid Foundation
(LBH Yogyakarta) to deal with criminalization
allegation and with the Indonesian Forum for
the Environment (WALHI) in legal fight against
violation of spatial plan by the Kulonprogo regency
government and material review on Law No. 4
of 2009 on Mineral and Coal Mining in order to
involve the consent of the local community before
making an area a mining site.

21
Case Study of
Philippines
Regulation Framework
The Indigenous Peoples of the Philippines
consist of a large number of indigenous ethnic
groups living in the country. They are the
descendants of the original inhabitants of the
Philippines. They were not absorbed by centuries
of Spanish and United States colonization of the
Philippines archipelago, and in the process have
retained their customs and traditions. Indigenous
Peoples of the Philippines have made significant
strides in their efforts to protect their ancestral
domains and their identities. Despite their political
and economic marginalization, they have managed
to gain legal traction in their struggle to defend
themselves from various threats.
In 1997, the Philippines Congress enacted the
Indigenous Peoples’ Rights Act (IPRA Law) or
republic act no. 8371an act to recognize, protect
and promote the rights of indigenous cultural
communities/indigenous peoples, creating a
national commission on indigenous peoples,
establishing implementing mechanisms,
appropriating funds therefore, and for other
purposes.20
This law recognizes indigenous
peoples’ right to self-determination and provides
mechanisms for the protection of indigenous
ancestral domains and all resources therein.
The IPRA adopted the concept of “free and prior
informed consent” (FPIC) as a means to protect
indigenous rights and interests and give them
a voice in ma ers that affect them. FPIC in this
context requires that indigenous communities be
providedwithadequateandaccessibleinformation,
and that consensus is determined in accordance
with indigenous peoples’ customary laws and
practices and free from any external manipulation
or coercion. The IPRA requires FPIC prior to the
20 Republic of the Philippines, The Indigenous Peoples’ Rights Act of
1997, Republic Act No. 8371 (1997)
extraction of resources from indigenous ancestral
domains and lands. When implemented effectively,
FPIC represents a critical tool in the realization
of indigenous self-determination, promoting
community participation in decision-making and
mitigating the risk of social conflict around natural
resource projects.
Unfortunately, even with strong legislation in
place, Indigenous Peoples in the Philippines have
faced considerable challenges in realizing their
right to give or withhold FPIC. This policy note
describes the key legal protections for FPIC in the
Philippines as well as past obstacles to effective
implementation. In addition, the policy note
highlights features of implementing rules adopted
by the government in 2012 to promote more
effective future implementation of FPIC.
Philippine constitution of 1987
The Philippine Constitution has explicit
provisions for protection of indigenous rights. It
guarantees indigenous peoples’ right to ancestral
domains and lands. The 1987 Constitution showed
a shi in policy “from assimilation and integration
to recognition and preservation.21
The following are the relevant articles of the
Constitution:
• Sec. 22 of Art. II. The State recognizes and
promotes the rights of indigenous cultural
communities within the framework of national
unity and development.
• Sec. 5 of Art. VI. For three consecutive terms
a er the ratification of this Constitution,
21 Reynato S. Puno, The IPRA: Indigenous Peoples and their Rights
(2008)

22
one-half of the seats allocated to party-list
representatives22
shall be filled, as provided
by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural
communities, women, youth, and such other
sectors as may be provided by law, except the
religious sector.
• Sec. 5 of Art. XII. 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 wellbeing.
• The Congress may provide for the applicability
of customary laws governing property rights
or relations in determining the ownership and
extent of ancestral domain.
• Sec. 6 of Art. XIII. The State shall apply the
principles of agrarian reform or stewardship,
whenever applicable in accordance with
law, in the disposition or utilization of other
natural resources, including lands of the public
domain under lease or concession suitable to
agriculture, subject to prior rights, homestead
rights of small se lers, and the rights of
indigenous communities to their ancestral
lands.
• Sec. 17 of Art. XIV. The State shall recognize,
respect, and protect the rights of indigenous
cultural communities to preserve and develop
their cultures, traditions, and institutions. It
shall consider these rights in the formulation
of national plans and policies.
• Sec. 12 of Article XVI. The Congress may create
a consultative body to advise the President
on policies affecting indigenous cultural
communities, the majority of the members of
which shall come from such communities.
22 According to the Constitution, party-list representatives constitute
twenty per centum of the total number of representatives
including those under the party list
The Indigenous Peoples’ Rights Act of 1997
(IPRA)
Former President Fidel Valdez Ramos initiated
meetings of the legislative and executive branches
of government and civil society to formulate a
commondevelopmentagenda.Thisagendabecame
the government’s comprehensive framework
towards poverty alleviation. A “doable list” was
formulated, prioritizing basic sectors’ agenda
through a “consensus building and consultative
collaboration process” of national government
agencies and civil society. This has become the
“Social Reform Agenda (SRA).23
” The SRA is an
integrated set of major reforms to enhance
democratic processes and enable the citizens to:
a) meet their basic human needs and live decent
lives; b) widen their share of resources from which
they can earn a living or increase the fruits of their
labor; and c) enable them to effectively participate
in the decision-making process that affects their
rights, interests, and welfare.24
The SRA produced
important laws including IPRA.
The IPRA implemented constitutional
provisions for the recognition of indigenous
peoples’ rights and interests over their ancestral
domains.25
The landmark enactment of the
IPRA signaled two paradigm shi s in the way
government regarded indigenous peoples. First,
it challenged the notion that the state had a
monopoly on the exercise of the law. The IPRA
recognizes indigenous legal systems which can be
used for dispute resolution, identification of the
extent of ancestral domains, and decisions on the
exploitation of resources, among others. It also
recognizestheirrighttoself-determination.Second,
it abandoned the perception that Indigenous
Peoples caused the degradation of forests.26
Before
23 Carlos Bueno, The Social Reform Agenda, MetroPost
24 United Nations, Social Aspects of Sustainable Development in the
Philippines (April 1998)
25 The Constitution in Article XII provides: 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 domain
26 June Prill-Bre , Contested Domains: The Indigenous Peoples
Rights Act (IPRA) and Legal Pluralism in the Northern Philippines,
55 J. LEGAL PLURALISM& UNOFFICIAL L., 11, 16-17 (2007).

23
the IPRA, the notion that Indigenous Peoples
destroy forests through “slash and burn” farming
systems prevailed.
Immediately a er the passage of the IPRA,
retired Supreme Court Justice Isagani Cruz and
lawyer Cesar Europe filed a case questioning the
constitutionality of the new law. It claimed that the
law violated the right of the State to “control and
supervise the exploration, development, utilization
and conservation of the country’s natural
resources.”27
Some critics of the IPRA, including for
example the Chamber of Mines of the Philippines,
believed that the law contradicted two established
legal principles: that only the State can own lands
and that the Department of the Environment
and Natural Resources has sole jurisdiction over
the forests and mineral resources.28
Mining and
Geosciences Bureau representatives claimed that
“giving Indigenous Peoples priority rights over
mineral resources within their ancestral domain….
is surrendering the state’s full control over all our
resources.”29
In Cruz v. Secretary of Environment and
Natural Resources,30
the Supreme Court of the
Philippines upheld the constitutionality of the
IPRA with the slimmest possible margin.31
The
decision explained that the IPRA does not violate
the Regalian Doctrine (which holds that States
owns all lands and waters of the public domain)
because ancestral domains are private lands.
Lands held since time immemorial are presumed
never to have been public. The US Supreme Court
promulgatedthisdoctrinewithregardtonativetitle
in the Philippines over a century ago with the case
Cariño v. Insular Government,32
which recognized
ownership based on time immemorial possession.
The decision of the Philippines Supreme Court
27 New Law on Indigenous Peoples Faces Legal Challenge, Philippine
Center for Investigative Journalism (1998)
28 ibid
29 ibid
30 G.R. No. 135385 (December 6, 2000)
31 When the Justices voted they were equally divided: 7-7 (the most
recent appointee to the Supreme Court did not take part in the
deliberations of the case and did not vote). The Justices deliberated
on the case again but the voting remained unchanged. Pursuant
to Rule 56, Section 7 of the Rules of Civil Procedure, Justice Cruz’s
petition was dismissed
32 212 US 449 (1909)
recognized the private nature of ancestral domains,
segregating them from the public domain and the
legal concepts that were used to challenge the
IPRA’s constitutionality. The incorporation of FPIC
in the IPRA raised hopes that the Philippines could
prevent the displacement of indigenous peoples.
FPIC has a clear statutory basis in Philippine
law, and is one of the most prominent features
of the IPRA.33
The IPRA defines FPIC as: 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 a er fully disclosing the intent and
scope of the activity, in a language and process
understandable to the community.
FPIC is mentioned repeatedly in the IPRA
for purposes of protecting indigenous peoples’
interests in their ancestral domains. Specifically,
FPIC in the context of the IPRA refers to IPs right
to stay in their territories; right to religious, cultural
sites, and ceremonies; right to give or withhold
access to their biological and genetic resources and
indigenous knowledge related to the conservation,
use, and enhancement of these resources; and right
to redemption in cases where land/property rights
have been transferred without their consent. The
IPRA also requires FPIC to “explore, excavate or
make diggings on archeological sites” of Indigenous
Peoples and “prior to the grant of any license, lease
or permit for the exploitation of natural resources”
which would affect indigenous peoples’ interests.34
The IPRA’s definitions of ancestral domains and
lands are quite comprehensive. Ancestral domains
are collectively owned and may include lands,
inland waters, coastal areas, and natural resources
therein (including minerals). Ancestral lands,
which have a narrower definition than ancestral
domains, may be under individual or traditional
group ownership. The law also provides for self-
delineation of ancestral domains, including lands
which they no longer occupy but have traditionally
used:
33 Republic of the Philippines, The Indigenous Peoples Rights Act of
1997, Republic Act No. 8371 (1997)
34 ibid

24
SECTION51. Delineation and Recognition of
Ancestral Domains. — Self-delineation shall be
the guiding principle in the identification and
delineation of ancestral domains. As such, the
ICCs/IPs [indigenous peoples] concerned shall
have a decisive role in all the activities pertinent
thereto. The Sworn Statement of the Elders as to
the scope of the territories and agreements/pacts
made with neighboring ICCs/IPs, if any, will be
essential to the determination of these traditional
territories. The Government shall take the
necessary steps to identify lands which the ICCs/
IPs concerned traditionally occupy and guarantee
effective protection of their rights of ownership
and possession thereto. Measures shall be taken
in appropriate cases to safeguard the right of the
ICCs/IPs concerned to land which may no longer
be exclusively occupied by them, but to which they
have traditionally had access for their subsistence
and traditional activities, particularly of ICCs/IPs
who are still nomadic and/or shi ing cultivators.
The IPRA also stipulates a role for government
in identifying and demarcating ancestral lands
through the National Commission on Indigenous
Peoples (NCIP). The IPRA created the NCIP, the
government agency responsible for developing
and implementing policies and programs to
protect and promote indigenous peoples’ rights.
It is composed of seven Commissioners appointed
by the President (all members of indigenous
communities) that have administrative, quasi-
judicial and quasi-legislative powers. The NCIP
maintains responsibility for issuing certificates of
ancestral domain titles and certification as a pre-
condition to the award of any permits, leases, or
grants (to companies, government, or any other
entity) for use of any portion of an ancestral
domain. The IPRA requires that the NCIP certify
that the communities gave their consent to the
exploitation of natural resources in their ancestral
domains as a condition of project approval (Section
46 (a)).
Though a strong law, IPRA has some
weaknesses. Concerns have been raised about
the way in which it simplifies and standardizes
concepts like indigenous peoples, customary laws,
and conceptions of ancestral domain.35
This glosses
over the differences among various indigenous
communities in the Philippines. IPRA has also been
undermined by other laws on natural resources
like the Mining Act, which results in confusion in
its implementation. 36
However, despite these challenges, clearly the
lawstrengthenedindigenouspeoples’rightstotheir
ancestral domains and cultural integrity. There
have been many a empts to water down important
provisions of the law, but so far indigenous
communities and civil society organizations in the
Philippines have been successful in defending it.
Recent FPIC Developments in Philippine
Law
The current administration – led by President
Benigno Aquino III – has taken measures to
improve the situation of indigenous communities.
ThegovernmentmovedNCIPbackundertheOffice
of the President,37
“to ensure concerted efforts in
formulating and implementing policies, programs
and projects geared towards the protection and
promotion of the rights and welfare of Indigenous
Cultural Communities/Indigenous Peoples.”38
The
administration also allocated additional budget
for NCIP to set up a quasi-judicial court. The court
tries to resolve issues related to IPRA, reducing,
if not eliminating, the need for litigation in other
courts.39
In addition, the administration appointed
as NCIP Chairperson Zenaida Brigida Hamada-
Pawid, who worked in civil society before joining
government. She has a history of advocating for
indigenous rights, so progressive NCIP reforms
under her term come as no surprise.
NCIP released new rules for FPIC
implementation in 2012.40
The rules aimed to
clarify provisions that are most prone to abuse,
35 Celeste Ann Castillo Llaneta, The Road Ahead for the Indigenous
Peoples (2012)
36 ibid
37 Perseus Echeminada, NCIP welcomes its return to the Office of the
President, Philippine Star, (November 11, 2010)
38 Executive Order No. 11, s. 2010
39 Log cit, Celeste Ann Castillo Llaneta: 2012
40 Republic of the Philippines, Administrative Order No. 03-12 or The
Revised Guidelines on Free and Prior Informed Consent (FPIC) and
Related Processes of 2012 (April 2012)

25
misinterpretation, misrepresentation, gra ,
and corruption.41
The Chamber of Mines of the
Philippines protested the new rules, arguing that
NCIP failed to consult with stakeholders on the
revised rules, finding fault with a few provisions,
and citing potential investment losses and delays
in a number of key exploration and mining
projects. The Mines and Geosciences Bureau of
the Department of Environment and Natural
Resources also questioned the rules, arguing that
they would discourage investments in mining.
Nevertheless, the NCIP published the revised
FPIC rules on May 16, 2012 as a way to address
the implementation challenges described in the
previous section. Section 3 of Administrative
Order No. 03-12 or the “The Revised Guidelines on
FPIC and Related Processes of 2012” embodies the
Declaration of Policy, stating that:
1. The FPIC actualizes and strengthens the
exercise by ICCs/IPs [indigenous peoples]
of their rights to Ancestral Domains, Social
Justice and Human Rights, Self-Governance
and Empowerment, and Cultural Integrity;
2. The right of ICCs/IPs to the management,
development, use and utilization of their land
and resources within their own ancestral
domains shall be given utmost regard;
3. No concession, license, permit or lease,
production-sharing agreement, or other
undertakings affecting ancestral domains
shall be granted or renewed without going
through the process laid down by law and
these Guidelines.
Some of the key features of these generally
quite progressive implementing rules are:
1. Stipulate clearly that Indigenous Peoples
have the right to develop a resolution of
consent or a resolution of non-consent. Both
typesofresolutionsareadoptedbytheaffected
indigenous communities or through their
41 Celeste Ann Castillo Llaneta, The Road Ahead for the Indigenous
Peoples, (2012) quoting NCIP Chair ZenaidaBrigida Hamada-Pawid
duly authorized elders/leaders and enable
communities to express their acceptance or
refusal to accept the proposed plan, program,
project or activity. In the case of a refusal to
accept, the non-consent resolution must also
document the reasons for the refusal (Sec 5).
2. Provide for “field-based investigations”
which consist of research on-the-ground to
determine the project overlap with and/or
impact to indigenous lands and identify the
Indigenous Peoples who will either grant or
withhold their FPIC. The rules require the
participation of indigenous leaders on the field
research team. Indigenous leaders, project
sponsors, and the relevant government agency
must agree on issues such as costs, format for
documenting the activity (photo, video, etc.),
and other relevant processes, and the results
of the field-based investigation must then be
validated in a community assembly.
3. Provide for the creation of an FPIC Team in
each province. Teams include: a Provincial
Officer, Provincial Legal Officer, engineer
from the provincial or regional office, head of
the field-based investigation team, and two
indigenous elders or leaders as selected by the
community (Section 16). The FPIC Team holds
the following responsibilities (according to
Section 18):
a. Convene, with prior notice, the first
general assembly to validate: (1) field-based
investigation report; (2) identity of the
indigenous elders and leaders; (3) decision-
making process; (4) census of Indigenous
Peoples (migrant or otherwise); (5) Area
affected; (6) Existence of boundary conflict
with other ancestral domains;
b. Documentandfacilitateconflictresolution
mechanism by the selected elders/leaders,
should there be any dispute to be resolved;
c. Facilitate and document the proceedings
of the assembly and be responsible for the
interpretation, translation, clarification, or
elaboration of ma ers discussed or taken
up;

26
d. Orient the participants on the pertinent
provisions of IPRA at all stages and
activities;
e. Present the agreed work and financial
plan during the assembly;
f. Invite the appropriate independent
experts, if available, to give their opinions
on any aspect of the project;
g. Should the indigenous communities agree
to the activity, help dra the Resolution
of Consent and the MoA, or Resolution of
Non-Consent;
h. Make an accounting, in accordance
with generally accepted accounting and
auditing rules, of all monies and properties
received in relation to the conduct of the
FPIC; and
i. Prepare and submit FPIC report with
recommendations, and an executive
summary of the same, both duly signed
under oath by the team leader and
members.
4. Provide for multiple applications of FPIC
throughout the life of the project. The rules
require that: “Unless specifically stated in the
MoA, separate exercise of the right to FPIC
shall be for each major phase of the proposed
activity such as Exploration; Operation or
Development; Contracting of operator; and
the like” (Section 20).
5. Call for the implementation of two
community assemblies. The first assembly is
held as soon as an FPIC fee42
has been paid. In
42 The NCIP’s Revised Guidelines on Free and Prior Informed
Consent (FPIC) of 2012 contains provisions regarding the FPIC
fee. The FPIC fee is paid for by the applicant (company) based on
the work and financial plan (WFP) for field based investigation
(FBI) or FPIC conference. The WFP shall be agreed upon by the
applicant, the concerned indigenous peoples’ representatives and
the NCIP during the pre-FBI/FPIC conference. The WFP shall
include costs of (a) food and snacks, lodging and transportation
expenses of those who will be actually involved in the FBI process;
(b) Documenting the FBI activities i.e. photo and/or video, casse e
recording and development, reproduction of documents; and (c)
Others as may be agreed by all the parties during the Pre-FBI/
Pre-FPIC conference. The computation of expenses or costs must
be based on rates applicable in the particular area where the FBI/
FPIC is to be undertaken. The fee is deposited in a trust account
established for the purpose by the regional office of the NCIP
addition to formal notice of representatives
of the ancestral domain and others, wri en
notice must be posted, “seven (7) days before
the activity in conspicuous places in and
around the concerned ICC/IP [indigenous
peoples] Community” (Section 22). During the
assembly participants will receive orientation
on IPRA and the FPIC process, validate the
field-based investigation report, identify
and validate indigenous leaders, determine
the consensus-building process that will be
implemented, receive the work and financial
plan for the process, and arrange for dispute
resolution mechanisms.
The second community assembly features
a presentation by the applicant of the project.
Section 22 of the rules stipulates that this
presentation should include:
a) The Operation Plan and the scope and
extent of the proposal;
b) The cost and benefits of the proposal
to indigenous communities and their
ancestral domains;
c) The perceived disadvantages or adverse
effects to the community; and
d) The measures adopted by the applicant to
avoid or mitigate these.
Experts and other stakeholders may be
invited to participate, and communities have
the opportunity to ask questions and raise any
concerns. The rules stipulate that indigenous
communities “shall be le alone to agree on
their decision-making/consensus-building
schedules and when to come out with their
decision.”
6. Requireavalidationassemblyonceagreement
has been reached among communities.
The FPIC Team must explain the MoA to
the community “in a language they speak
and understand” (Section 22). Communities
must confirm and both parties must sign the
agreement before it is binding. The resolution
of consent or non-consent is also signed.

27
7. Denote excluded areas. These include sacred
grounds and burial sites of indigenous
communities, identified international and
local cultural and heritage sites, critical areas
identified or reserved by the indigenous
people s for special purposes, and other areas
specifically identified by Indigenous Peoples
(Section 25).
8. Prohibit several acts that might lead to abuse
of the process during the time in which an
FPIC application is pending. For example,
applicants must avoid: using force, coercion or
intimidation to any degree, bringing firearms
on community visits; bribery or promise of
money, privileges or rewards; clandestine
negotiations with indigenous communities;
etc. Similarly, NCIP employees must refrain
from accepting money or gi s from applicants;
a empting to unduly influence the outcome
of the process; failing to act appropriately
in response to complaints coming from
communities members; holding unauthorized
meetings such as “wining and dining drinking
sessions”, etc. Finally, indigenous community
members or leaders must also refrain
from soliciting or receiving money or gi s,
negotiating or mediating without authority,
a empting to unduly influence the outcome
of the process, etc. (Section 65). The rules
also describe sanctions for violations of its
conditions (Section 66)
While the above stipulations put in place
important safeguards to promote effective FPIC
implementation, some indigenous and civil
society groups have identified concerns with
certain aspects of the rules. For example, the
rules prescribe a time limit on indigenous peoples’
decision-making processes which may not accord
with the actual process indigenous communities
undertake to evaluate projects and make informed
decisions.43
This time limitation was included as a
43 Section 22 provides that towards the end of the Second
community assembly,
…the ICCs/IPs shall be left alone to agree on their
decision-making/consensus-building schedules and
when to come out with their decision. This activity must
not be undertaken less than ten (10) days from the
last minute modification to the rules by the NCIP.
Such limitation in earlier versions of the rules had
been subject to strong criticism by Indigenous
Peoples on the grounds of being culturally
inappropriate and unreasonable. UNCERD also
called on the government to ensure realistic
timeframes for consultation processes to maintain
consistency with the spirit of FPIC.44
The rules
also stipulate that project proponents have the
opportunity to seek consent every six months.45
In exercising their rights to self-determination
and FPIC some communities may decide to reject
a project for a number of years, and in these cases
should not be forced to reconsider their decision.
Finally, while it is useful that the rules require two
community assemblies, in fact more assemblies
will likely be needed for complicated projects – such
as those in the oil and mining sectors – to ensure
that community members have the opportunity to
receive information on the project and have time to
process the information and formulate questions.
Despite these significant shortcomings, the
implementing rules nevertheless go a long way
towards promoting effective and participatory
implementation of FPIC in accordance with
the IPRA when compared to previous flawed
implementing rules. They are only recently being
put to the test.
Revenue Sharing to the Indigenous
Community
Economic activities of the Indigenous Peoples
Prior to Extractive Industries in their Ancestral
Domain Indigenous Peoples are among the poorest
andmostmarginalizedsectorsofPhilippinesociety.
They experience neglect and discrimination
in the provision of basic social services by the
Government. The 2008 budget shows that regions
with the highest concentrations of Indigenous
Peoples get the smallest allocations from the
date of the Second community assembly and must be
completed within a reasonable time but not more than
two (2) months thereafter
44 CERD Concluding Observations to the Philippines UN Doc
CERD/C/PHL/CO/20 (August 27, 2009)
45 Statement from the Indigenous Peoples and Extractive Industries
Network (IPEIN) to the Forum on Business and Human Rights
(December 22, 2012)

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