FPIC in the Philippine Context

[Below is the transcription of the points of Ms. Mary Louise G. Dumas on the rights violations vs indigenous peoples by PH gov't and businesses at the parallel session of the 1st Asia Pacific Regional Forum on Business and Human Rights organized by the Office of the High Commissioner for Human Rights on April 19-20, 2016 at Sheraton Doha Resort and Convention Hotel in Doha, Qatar. Ms. Dumas, executive director of the Mindanao Interfaith Institute on Lumad Studies, was a panelist in the Forum’s parallel session entitled, “A Spotlight on Indigenous Peoples in Asian in the Context of Business Activities." ]

 

 

 

Q: Can you share about your organization and what you work on?

A: I work in a media and research center, the Mindanao Interfaith Institute on Lumad Studies, which focuses on indigenous issues – issues that affect them like the entry of mining, plantations, mega dams in ancestral domains. The institute is part of a bigger project which includes components on advocacy, setting up of support networks for the indigenous communities, documentation of human rights violations and databanking.

Let me start by saying that the Philippines has an existing framework for indigenous peoples – the Indigenous Peoples’ Rights Act (IPRA) of 1997. It is a victory from several years of indigenous peoples’ struggles, but somehow it has become problematic – coopted and used against the indigenous communities. For example, under the law, it has given the mandate to the National Commission on Indigenous Peoples (NCIP) to facilitate free, prior and informed consent (FPIC) in the communities. The problem is that there have emerged the ‘acknowledged or government-appointed’ indigenous leaders who the NCIP would go to for the FPIC.  It is a given that there can be several ‘datus’ or traditional leaders in a community. But these selected by the government are not necessarily elected by their communities or traditionally chosen as the supreme heads. But they are the ones amenable to government development framework. They are the ones who now control the decision-making process in the communities.

We have a nice-sounding framework. But there’s a difference in its implementation on the ground. The discrepancy is what we are working on.

Q: Is there a consensus on what consent really is? Is there an understanding of who needs to be part of that consent process?

A: That’s one of the problems. The FPIC has become reduced to a document required from businesses. They have to have this before being allowed to operate. And also because of the national law, it has somehow become homogenous for all the communities – how to get this FPIC. Even in just Northern Mindanao, just one region in the Philippines, the communities have different ways of giving or withholding consent. Well, when we say consent it’s not just the yes but also the no. What’s important is the participation. The more important thing there is the ability of the community to determine how the consent or the consultation is done. And the participation of the community should be encouraged, not just get them to sign the papers.

That’s one of the problems we still have – how to determine what should be the method of giving consent. There are communities who do rituals. There are communities who have to do forums. So it’s different for each community. Unfortunately it’s not what’s happening in this hegemonic implementation of IPRA.

Q: Are there any good examples from the Philippines where a community defined consent and it has taken place?

A: Definitely. There are communities who have pushed and asserted their rights. We have good examples of that. But these are the communities who were able to really retain their self governance and push for self determination. In Bukidnon, we have a community where if they have, for example, legal concerns, they can demand that trials will be held in their community and not in the judicial system of the Philippines.

Q: What would you say distinguishes their ability to have a successful FPIC process? You have communities that you work with in Mindanao whose rights have been taken away, why have been some communities been able to have a successful FPIC process? What would be their characteristics?

A: It’s actually just their unity - and the people power, if I can say that. It’s the consolidation of the communities. They know who they are. They know what they want. They just know their identity and they assert to have this identity and the rights that come with that respected. This is the main difference between their community and the other communities who have been ‘coopted’.

Q: Can any panel member share what form does this consent takes? When we use the word consent, is it a type-written consent? Is it the minutes of a meeting? Is it verbally? A recording? How universal is this consent? How does a consent take into consideration other groups who are not as politically powerful, do not have representation? Is there a case where consent has been withdrawn?

A: We have different experiences regarding the FPIC. There was one instance where a company wanted to build a megadam for hydropower. What they did was they gathered the community supposedly just to give information on the dam. The community signed their attendance. And they used that attendance sheet as consent. So this is one form of coopting the FPIC process. Of course this was contested and thankfully the dam is not yet being developed now.

Second, we have a tenurial instrument which is the Certificate of Ancestral Domain Title. There are indigenous communities who are not aware that this actually exists. There was a case where a palm oil plantation came in and the community protested, saying that they didn’t know there was this project coming. The business company said well, they didn’t know there were IPs present there.  So after blood – literally bloody – events, the project has been put on hold. But right now, it’s not final. The community has to prove that they’re indigenous. If they can prove they’re indigenous, then the NCIP will facilitate the FPIC. So right now the plantation is not operating although they already have their nursery there.

Then there’s this other case in a neighboring region. It’s a smaller project, a project initiated by an NGO. It was a treenplanting and reforestation project. Here, it was the NCIP, the government institution, which said the NGO didn’t ask for the permission, for the FPIC, of the community. But then it was because the NGO didn’t go through the government institution. It actually talked and negotiated with the community leaders. The community stood up for the NGO, and said they wanted to have the project in their community.

Q: Can you say more about that process in proving indigeneity?  What do communities have to do?

A: We have this contest now between titled ancestral domains and those communities who insist on native titles. With the ancestral domains, there is this titling and delineation, a process where we have to go through the NCIP, where communities have to pay for the expenses. They also have to prove it with the testimonies of the elders, and they have to locate the ancestral – where the ancestors are buried, which is, in some communities, is actually forbidden because sacred sites should remain secret – that’s one thing that’s contradictory to indigenous culture. But these are the proofs that need to be submitted for the ancestral domain title.

Q: We have heard all these violations on the indigenous peoples’ rights from the panelists. Are there suggestions on how these can be addressed? What are three things that can be done to achieve a situation where business interests will not be compromised but at the same time indigenous peoples’ rights are fully respected?

A: I was able to think only one - which is actually to reverse the process. Instead of businesses imposing what they want on the communities maybe the communities should be asked – what kind of development do they want? What kind of development do they need in their communities? And then they look for businesses, which can collaborate with them on these development perspectives that they themselves articulated.

 

[The Mindanao Interfaith Institute on Lumad Studies or MIILS has been established by RMP-NMR Inc and partners, and is a part of the ‘Healing the Hurt’ Project supported by the European Union.]