Community Right Base Advocacy on Extractive Industries

sampul Advokasi Industri Ekstratif.indd 1 sampul Advokasi Industri Ekstratif.indd 110/11/2015 14:43:19 10/11/2015 14:43:19

Community Right Base Advocacy on Extractive Industries:Framing and Experience from South East Asia Countries

Pius GintingMeliana LumbantoruanRonald Allan Barnacha


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Community Right Base Advocacy on Extractive Industries: Framing and Experience from Southeast Asia Countries

ISBN : 978-602-72039-6-9

Writer

Pius GintingMining and Energy Campaigner, Wahana Lingkungan Hidup Indonesia

Meliana Lumbantoruan.Research and Knowledge Manager, Publish What You Pay Indonesia

Ronald Allan BarnachaAdvocacy Offi cer, Philippines Rural Reconstruction Movement (PRRM)

Reviewer

Christina HillMining advocacy coordinator, Oxfam Australia

Maryati AbdullahNational Coordinator, Publish What You Pay Indonesia

All Right ReservedFirst 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 refl ect the views of USAID, the United States Government, or the Natural Resource Governance Institute (NRGI).

Publish What You Pay IndonesiaJl. Tebet Utara 2C No.22B, Jakarta Selatan 12810, IndonesiaTelp/Fax :+62-21-8355560 | E: [email protected]

Advokasi Berbasis Hak di Industri Ekstraktif: Bingkai dan Pengalaman dari Negara-negara Asia Tenggara

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Table of Contents

Background ............................................................................................................................................................................. 1

The Importance of Community Right on Extractive Industries Value Chain. ..............................2

The Importance of Community Right Based Advocacy ............................................................................5

Defi nition & 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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Preface

Extractive 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, unfulfi lled 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 fi nish 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 the last, we thank you for all big support of National Secretariat of PWYP Indonesia colleagues.

Jakarta, May 2015

Maryati Abdullah

National Coordinator of Publish What You Pay Indonesia


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Human rights-based approach to advocacy, or shortened as rights-based advocacy, usually associated with needs-based

advocacy. However the two can be diff erentiated. In rights-based advocacy, economic, social and political problems faced by a community viewed from inalienable rights are protected and respected. 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, unfulfi lled 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 fi gures 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

02005 2006 2007 2008 2009 2010 2011 2012 2013

4,354.16,085.7 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


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In terms of employment, the extractive sector employs only 1,555,564 people (1% of all jobs). This fi gure is relatively small compared to agriculture, plantation, and fi shery 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 fi elds operations, until the collection and fi nal 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 fi rst 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 defi ned, local content obligations improve projects’ economic and social benefi ts, and help minimize their long-term risk.

In the second chain, during operation phase, people must fi ght 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 benefi ts and their long-term sustainability, and also gave a� ention on Issues related to the decommissioning of old oil and gas fi elds 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

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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 eff ects of extractive industrial activities, which produce resource-curse phenomenon, because rights of the community is protected, respected and fulfi lled on the basis of international and national laws as well as the need

to apply participative development.

As extractive industries possess a specifi c 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 (modifi ed)

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The Importance of Community Right Based Advocacy

Advocacy is the process of using information strategically to change policies that aff ect 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 diff erent to one that off ers assistance to a community without providing a

solid framework about people’s rights and that views it as a benefi ciary instead of an object with powerful rights.

The signifi cance of community rights-based advocacy is based on the assumption that a community can get a be� er life if the state fulfi lls their rights and in a democratic country with respect to law, the acknowledged rights are suffi cient to allow a dignifi ed 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 fulfi ll community rights will run beyond the period of advocacy and this is quite diff erent from an assistance-based approach, in which services to channel aid will stop when the program ends due to certain considerations.


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Defi nition & International Framework

Right Base ApproachRight 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 of power that impede development progress. Under human right-based approach, the plans, policies and processes of development are anchored in system of rights and corresponding obligations established 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, suff ering 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 identifi ed by a community correspond with the basic human rights, and to explore how best to apply these rights within the local, national or international fi eld. Furthermore, rights-based approaches aim to strengthen the ability of states to fulfi ll 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 aff ect 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 signifi cant impact on local people and the environment, and the nature of related compensation and benefi ts packages, addressing the power diff erentials 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


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While there is no universal defi nition, FPIC generally requires that communities must be adequately informed about development projects and should be given opportunity to approve or reject 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 eff ort 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 eff ective 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 eff ective participation by indigenous communities in decisions aff ecting 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 eff ective 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

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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 aff ecting IPs lands, territories and resources, particularly in connection 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 aff ecting 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 reaffi rmed in 2002 by the European Commission.

Meanwhile, in SEA regions adopted the fi rst regional human rights instrument on November, 18th, 2012, called as ASEAN Human Right Declaration

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 fi rst 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 aff ecting their lands and territories, for example.

In Philippines, the Indigenous Peoples Rights Act (1997) recognizes the right of FPIC of Indigenous Peoples for all activities aff ecting 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 aff ecting 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


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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 aff ect 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 collectively benefi t from the use of such knowledge.

In fi ve 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 Benefi ts Arising from the Use of Biological Resources and Associated Traditional Knowledge, WIPO and UNEP.Study No. 4.

FPIC on the ICMM’s Framework ViewBeside of those framework, there also other

framework and view about FPIC. The International 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 benefi t.

In ICMM’s framework, FPIC comprises a process and an outcome. Through this process Indigenous Peoples are: (i) able to freely make decisions without coercion, intimidation or manipulation; (ii) given suffi cient 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 benefi ts. 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 signifi cant impacts on indigenous communities. The position statement will not apply retrospectively. Where both indigenous and non-Indigenous Peoples are likely to be signifi cantly impacted, members may choose to extend the commitments embodied in this position statement to non-indigenous people.

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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 identifi cation 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 metals projects can have signifi cant impacts 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 resources for purposes such as hunting, fi shing, gathering of seeds/fruits and medicines, or for spiritual or ritual purposes; in material objects or resources of cultural signifi cance; in landscapes which have special signifi cance

because of association, tradition or beliefs; members of host communities whose social, economic and physical environment may be aff ected 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 the support of a range of interested and aff ected parties. This includes both the formal legal and regulatory approvals granted by governments

12 As of October 2012, 22 countries had ratifi ed 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 commitments10 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 Visionleading 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)


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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 aff ect 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, fi rst 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 Aff airs 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 and minimizing, managing or compensating for unavoidable residual impacts; and (iii) ensuring sustainable benefi ts 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 defi ned 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 refl ect 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 identifi es 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 defi ne what would constitute consent from indigenous communities that may be signifi cantly 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 traditionally owned by or under customary use of Indigenous Peoples and are likely to have signifi cant adverse impacts on Indigenous Peoples, including where relocation of Indigenous Peoples and/or signifi cant 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. These processes should neither confer

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 diff erences of opinion will arise, which in some cases may lead 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 diff erences 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 eff orts 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 eff orts 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 open and accountable government which is gaining 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 certifi ed copies of documents or records.

3. Take certifi ed samples of material.

4. Obtain information in form of printouts, diske� es, fl oppies, tapes, video, and casse� es or in any other electronic mode or through printouts.

There are some principles of the right to freedom of information that set out by national and 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 that this presumption may be overcome only in very 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 offi cial information is a basic right. The overriding goal of legislation should be to implement maximum disclosure in practice. Public bodies have an obligation to disclose

17 Ahmad Faisol, dkk. Fulfi lling 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 signifi cant 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 aff ecting 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 Natural Resources Management and Constitutional 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 fi ghting 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 fi rm provided social facilities and job opportunities. The facilities were built within fi ve 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.18This case proves that sizeable aids given to a community is not eff ective when the people is positioned as an object of donors or charity actions instead of a party whose rights must be fulfi lled. 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 eff ort was also justifi ed 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 fi ght

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 off er wide opportunities for participation to the people.

Community-rights based approach on extractive industries is hard to apply in undemocratic countries and to off er 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 confi rming 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 intensifi ed. Mining permits issued in the period surged, thereby community participation gained more importance, starting from people’s demand in the fi eld 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 eff ort 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 FPICIndonesian 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 benefi t 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 fulfi ll 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 suffi ced to support the livelihood of those 50,000 people. They pointed out the positive eff ect 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 certifi cates 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 fi rst of its kind in Java Island as well as the fi rst 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.

PT Jogja Magasa Iron is 30 percent owned by PT 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 fi rm 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 fi rm will take up 5,000 local workers, while in the initial phase of production it will employ 3,000 local workers. This fi gure is much lower than 50,000 farmers to be aff ected by its investment, which cannot fully be employed by the mining industry.

The investment of the fi rm 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 fi nancing and US$55 million through operating expenditure.

In the fi rst 10 years PT Jogja Magasa Iron will contribute 1.5% of its sales each to Regional Development and Community Development, which a� er the period will be raised to 2%. Nevertheless, the people have viewed that this off er 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 guaranteed by Law No. 11 of 2005), and Rights to Land (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 confl ict 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 fi shery. 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 to Law No. 13 of 2012.The people who refused mining 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 fi led 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 fi ght 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 fi ght. 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 fi ght 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 FrameworkThe 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 signifi cant strides in their eff orts 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 aff ect them. FPIC in this context requires that indigenous communities be provided with adequate and accessible information, 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 eff ectively, FPIC represents a critical tool in the realization of indigenous self-determination, promoting community participation in decision-making and mitigating the risk of social confl ict 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 eff ective implementation. In addition, the policy note highlights features of implementing rules adopted by the government in 2012 to promote more eff ective 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 ratifi cation 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 fi lled, 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 aff ecting 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 common development agenda. This agenda became 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 eff ectively participate in the decision-making process that aff ects 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, identifi cation of the extent of ancestral domains, and decisions on the exploitation of resources, among others. It also recognizes their right to self-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 fi led 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 promulgated this doctrine with regard to native title 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 defi nes 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. Specifi cally, 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 aff ect indigenous peoples’ interests.34

The IPRA’s defi nitions 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 defi nition 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 identifi cation 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 eff ective 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 certifi cates of ancestral domain titles and certifi cation 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 simplifi es and standardizes concepts like indigenous peoples, customary laws,

and conceptions of ancestral domain.35 This glosses over the diff erences 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 law strengthened indigenous peoples’ rights to their 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. The government moved NCIP back under the Offi ce of the President,37 “to ensure concerted eff orts 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 Offi ce 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, fi nding 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 aff ecting 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 types of resolutions are adopted by the aff ected 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 “fi eld-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 fi eld 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 fi eld-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 Offi cer, Provincial Legal Offi cer, engineer from the provincial or regional offi ce, head of the fi eld-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 fi rst general assembly to validate: (1) fi eld-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 aff ected; (6) Existence of boundary confl ict with other ancestral domains;

b. Document and facilitate confl ict resolution 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, clarifi cation, 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 fi nancial 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 specifi cally 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 fi rst 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 fi nancial plan (WFP) for fi eld 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 offi ce 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 fi eld-based investigation report, identify and validate indigenous leaders, determine the consensus-building process that will be implemented, receive the work and fi nancial 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 benefi ts of the proposal to indigenous communities and their ancestral domains;

c) The perceived disadvantages or adverse eff ects 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. Require a validation assembly once agreement 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 confi rm 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, identifi ed international and local cultural and heritage sites, critical areas identifi ed or reserved by the indigenous people s for special purposes, and other areas specifi cally identifi ed 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 fi rearms 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 infl uence 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 infl uence 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 eff ective FPIC implementation, some indigenous and civil society groups have identifi ed 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 modifi cation 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 signifi cant shortcomings, the implementing rules nevertheless go a long way towards promoting eff ective and participatory implementation of FPIC in accordance with the IPRA when compared to previous fl awed 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 and most marginalized sectors of Philippine society. 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)


28

national Government (CAR –1.22per cent, CARAGA –1.38per cent, Region IX –1.58 per cent). Thus, social service provision in indigenous territories is far below that of the rest of the country (ADB 2001).The lack of budget has resulted in generally poorer living conditions and higher incidence of poverty in regions where Indigenous Peoples are found or concentrated. This is seen, for instance, in the fact that Mindanao, where 61percentof Indigenous Peoples live, contributes 31 percent of the total poverty incidence in the country and has the highest poverty and subsistence incidence among the major island groups in the country.

Poverty incidence in Mindanao reaches38.8 percent, an increase of 1.1 percent from 2003 fi gures. Mindanao’s poverty incidence rate is11.9 percentage points higher than the national average of 26.9percent. Subsistence incidence–the proportion of families and individuals not earning enough to meet basic food needs–is also highest in Mindanao at 19.2 percent. The Cordillera region, where 99per cent of the population is indigenous, is one of the poorest regions in the country with the lowest budget allotment despite its large contribution to the national wealth. Four out of six Cordillera provinces are among the country’s poorest, and three towns in two of its other provinces belong to the poorest 100 towns in the Philippines. The National Statistics Coordination Board (NSCB) lists Apayao province as the fourth and Abra province the ninth among the poorest provinces in the country. Kalinga and Ifugao are eleventh and sixteenth respectively.

Indigenous peoples” communities are found in the forests, mountains, lowlands and coastal areas of the country and are in varied levels of socio-economic development. They are engaged in a mix of production systems including swidden farming in mountain slopes, se� led or sedentary agriculture of rice, corn and vegetables, hunting and gathering in forests, livestock raising, fi shing along coastal areas and rivers and producing and trading local handicra� s. Some indigenous peoples, like the Dumagats of Quezon and Aetas of Zambales ,have retained their nomadic way of life–hunting and gathering in the forest and engaging in swidden

agriculture at the marginal to subsistence level. Others, like the Igorots in the Cordillera and many of the other Indigenous Peoples in the country, are also now engaged in a mix of off -farm and non-farm activities, such as handicra� s production, small-scale mining, construction, service and other occasional/seasonal labor.

Many Indigenous Peoples engage in cash-generating activities, such as operating small businesses and trading local products, to augment their farm produce and meet their basic needs 7. A few are employed in government or private institutions and earn a regular salary, while others are dependent on remi� ances of family members who are regularly employed in urban centers or abroad. Some cash income also comes in the form of pensions from insurance institutions. Outside infl uences have caused changes in the economic systems of the indigenous peoples. We can generally say that today, most of the Indigenous Peoples are engaged in subsistence agriculture but, by necessity of survival, are increasingly being integrated into the wider market economy in the whole country.

Community Right Advocacy on Extractive Operations

A common characteristic of Indigenous Peoples in the Philippines is their close a� achment to ancestral land, territory and resources. The worldview that “land is life” is deeply embedded in their existence. Land is the “territorial base that is indispensable as the living space for the community and its sources of food and other needs” and is directly related to their culture and immediate environment Land is life to indigenous peoples. It is their abode since time immemorial. It is the material basis of their collective identity and survival as indigenous peoples. Ancestral domain to the Indigenous Peoples is a holistic concept encompassing not only the land but including its resources: the rivers, forests, the fl ora and fauna, the minerals underneath and the air above. It is not a commodity to be sold or exchanged but a resource to be nurtured for future generations.

29

There is broad diversity and fl exibility in the forms of land ownership among indigenous peoples, from communal to semi-communal to private. Rights to land are derived primarily through inheritance, investment of labor and actual improvements on the land. Access to and control of land and resources are traditionally regulated through customary laws, which the communities themselves evolved. Land is viewed as a collective legacy to be maintained across many generations since it is the source of life and livelihood for its occupants. Indigenous Peoples communities are generally situated in areas that are rich repositories of high biodiversity. This is largely due to their sustainable practices in natural resource management which have conserved the natural wealth of the land. Distinct indigenous knowledge systems on sustainable management of resources continue to persist in varying degrees. Indigenous knowledge serves as a collective set of guides in the use and management of resources within their ancestral domain.

The Philippines Republic Act 8371 was enacted into law on October 29, 1997, creating the National Commission on Indigenous Peoples (NCIP) merging the ONCC and OSCC as its organic offi ces. The function of the National Commission of Indigenous Peoples is to address the issues and concerns of the country’s Indigenous people and oversee the implementation of RA 8371.There is a specifi c provision in this Act pertaining to mining and Tribal lands and generally speaking any land that is not titled in the Philippines is more o� en than not considered part of the Ancestral Domain. So, having said that in order for any mining company to commence mining activities they must fi rst get a mining permit and a pre-requisite to obtaining a mining permit is to get Free and Prior Informed Consent from the Indigenous Tribal Community and then have that certifi ed and approved by the 7 Commissioners comprising the NCIP.

This is a lengthy and exhaustive process which starts at the ground level and works its way up all the way to Manila where the National Commission for Indigenous People fi nally certifi es the FPIC. The process commences when there is a potential

site to being considered by a Mining company we would send liaison personnel to the area to talk with the actual Tribal leaders (Datu’s) and discuss our interests with them and if they would be open to the idea. If at this stage the Datu controlling the area objects or even the Datu’s in neighboring areas object then we would not proceed, it would be an exercise in futility.

If the Datu’s are in favor of the Project then we need to conduct a consultative forum with the Tribal council in the area where not only the Datu’s are involved but the whole tribal council is invited to participate, if they are in favor of the Project we continue to the next step, if not it stops there. The next step is to get the Provincial Consultative Bodies approval and advertise with poster’s in the area to have a larger open community open forum with all Datu’s, the Tribal Counsel leaders and all the people in the community and surrounding areas in the last case we had over 200+ people a� end.

This larger open forum is supervised by the Regional National Commission for Indigenous People and if approved a Memorandum of Agreement is signed with the Tribe and the NCIP. This MOA along with the regional certifi cation of Free and Prior Informed Consent is forwarded to the Main offi ce in Manila for consideration by the 7 Commissioners comprising the NCIP and only a� er they review and approve the MOA and Application for Certifi cation for Free and Prior Informed Consent will they issue a Certifi cation of FPIC. Without this certifi cation an application with the Mines and Geo-sciences Bureau for a permit to mine will never be approved as the FPIC Certifi cation from the NCIP is an absolute pre-requisite!

So as you can see the Indigenous tribes are thoroughly protected by law and the articles being posted are pure propaganda by anti-mining lobby using the Indigenous people as a way to exploit their agenda.


30

The Struggle Continues: Uphold the Rights of Indigenous Peoples

The recognition and protection of indigenous peoples’ rights is one struggle that has been carried out passionately for many years now. Over at the United Nations, the adoption by the general assembly of the declaration of the rights of the Indigenous Peoples on September 13, 2007 sparked worldwide jubilation among indigenous cultural communities and various support groups from civil society. While the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is not a legally binding instrument, it sets “an important standard for the treatment of indigenous peoples that will undoubtedly be a signifi cant tool towards eliminating human rights violations against the planet’s 370 million indigenous people and assisting them in combating discrimination and marginalization,” the UN says.

In the Philippines, the passage of the Indigenous Peoples’ Rights Act (IPRA) on October 29, 1997 caused similar jubilation that reverberated even from the farthest outskirts of the Philippine society, home to approximately 14 to 15 million Indigenous Peoples sub-divided further into 110 ethno-linguistic groups. The common understanding then was finally a national law to protect and uphold the rights of the Indigenous Peoples has come at last. IPRA with the four bundles of rights it swore to protect upon its passage into law came like a long-awaited rain. A downpour of celebration temporarily quenched lips that parched from shouting too long in the streets and legislative halls the aspiration for the recognition and protection of indigenous peoples’ rights. These four bundles of rights include the right to ancestral domain and lands, right to self-governance and empowerment, social justice and human rights, and right to cultural integrity.

IPRA provides for the establishment of the National Commission for the Indigenous Peoples (NCIP) which the law mandates to “protect and promote the interest and well-being of the ICCs/IPs with due regard to their beliefs, customs, traditions and institutions. “Unfortunately, as to what extent the NCIP has lived up to its mandate or how IPRA has been implemented since

its passage in 1997 is another continuing sad story of the grievances of the indigenous peoples. The Indigenous Peoples in the Philippines continue to fi gure in social discrimination, economic marginalization and political disempowerment, albeit the presence of IPRA and the existence of NCIP. Subject to socio-economic and political exclusion, they have remained the most disadvantaged peoples representing the poorest of the poor and the most vulnerable sector.

Role of Civil Society OrganizationsAid to civil society is becoming an increasingly

important part of the development agenda. Located in the space between the family and the state, and promoting coordinated public action among their members and other citizens, civil society organizations have been celebrated most o� en for their role in promoting and protecting democracy.46 Increasingly, however, their contribution to economic development and poverty reduction are also being acknowledged and supported.47A fundamental aspect of the operation of Civil Society Organizations (CSOs) concerns the mediating role that they play between the individual and the state. Analysts have demonstrated empirically how both states and citizens can benefi t when a dense web of civil society organizations mediates the relationship between them. The performance of government programs is improved and the impact of state policy is enhanced and made more widespread when, instead of interacting with citizens as atomized individuals, state agencies deal with relatively organized citizens’ groups. Citizens are also able to derive greater benefi ts from government programs and from market opportunities when their individual eff orts are organized and made more cohesive by CSOs.48 There are good reasons to believe why organizations originating in society can perform these mediating roles more eff ectively

46 The literature relating to the roles played by such organizations in the “fourth wave” of democratizations in Eastern Europe and Latin America are represented, for example, by Schmi� er and O’Donnell (199x), Ekiert (199x)

47 See, for example, Barber 1995; Fukuyama 1995; Kothari 1988; Ostrom, Gardner and Walker 1994; World Bank 1993, 1997.

48 Useful theoretical and empirical accounts of these relationships are provided, for instance, in Ostrom (1990); Rosenstone and Hansen (1993); and Verba, Schlozman and Brady (1995).

31

compared to other organizations that are initiated and controlled by the state. While analysts of development have focused traditionally on the resources and capacities that exist among state agencies, a relatively ignored resource, comprised by the talents and energies that exist among the poor themselves, is increasingly being identifi ed by recent studies conducted under the rubric of social capital. CSOs are important for mobilizing social capital to serve development objectives.

Social capital has been defi ned as those aspects of social organization, including networks, norms and social trust that facilitate coordination and cooperation for mutual benefi t. Communities and groups that are more closely united by bonds of trust and networks of mutual assistance are more likely to achieve superior development performance compared to other communities and groups where such bonds and networks are weaker. Social capital in this reckoning has both a cognitive dimension - consisting of norms, values, a� itudes and beliefs that predispose people toward collective action - and a structural dimension, composed of formal or informal organizations that facilitate collective action for achieving some common objective.49.

Having a high level of social capital, a community is endowed with the capacity to tackle multiple tasks related to collective well-being. Some agency is necessary, however, to harness this endowment and to convert it into a stream of benefi ts. How exactly is the social capital of any community brought to bear upon any particular development problem? How, for instance, can a community of poor citizens utilize the social capital that they have for resolving some common problem, say, building a water supply system or enhancing agricultural productivity? Empirical research on social capital is still relatively new, but the emergent evidence indicates that some act of agency is necessary in most instances for making productive use of the resource, social capital.

49 On social capital, in general, and its links with institutional performance, see Putnam et al. (1993) and Coleman (1990). On the distinction between the cognitive and structural dimensions of social capital, see Uphoff (1999) and Krishna (1999).

CSOs play the critical role in mobilizing social capital. Social capital is a resource that any community possesses to some level and it can help in resolving multiple problems of a collective nature. Like any other resource, social capital also needs to be activated and it needs to be combined with other kinds of resources, including physical, fi nancial and human resources. A useful analogy draws upon the distinction between stock and fl ow. To be helpful for development or for any other purpose, the stock of social capital possessed by any community needs to be converted into a fl ow of benefi ts. Like a lode of rich mineral ore, social capital has only potential and not real value - until it is activated and combined judiciously with other resources.

These acts of mobilizing social capital and harnessing it together with other resources are performed in the main by CSOs. Usually, CSOs that have a local origin can tap - legitimately and accountably - into the cultural and social resources that comprise social capital. Evidence collected by the small group of studies conducted so far concerning development and social capital indicate quite clearly that forms of organization imposed from the outside are rarely successful in tapping into communities’ resources of social capital.50 Earlier studies intended to study the eff ects that diff erent types of organizations have in terms of mobilizing people’s participation in development programs also support a similar conclusion. Membership organizations and those emanating from the grassroots up are more likely to draw upon local traditions of coordination and cooperation compared to other organizations that are set down from above.51

One critical advantage, thus, that CSOs usually have over state-sponsored organizations concerns their ability to tap, eff ectively and legitimately,

50 For instance, see Grootaert (1998), Krishna and Uphoff (1999), Reid and Salmen (1999).

51 Representative studies of this genre include Esman and Uphoff (1984), Carroll (1992), and Farrington et al. (1993). Other organizations can also support social mobilization at the local level, these studies indicate, but only those externally imposed organizations can be successful in this respect that learn to be accountable to the local population (instead of to their hierarchical superiors) and that can thereby gain some degree of local legitimacy.


32

into societies’ reservoirs of social capital. As good results are achieved with the help of collective action, social capital gets built up and traditions of cooperation for mutual benefi t are further reinforced. Encouraging and facilitating these virtuous cycles of social capital mobilization provides an important reason behind the current concern with assisting civil society organizations.

However, while the roles played by CSOs in eff ecting social mobilization and harnessing social capital are being increasingly well recognized, there is relatively li� le practical guidance available that can assist practitioners translate from expectations into ground realities. How should plans and strategies be devised in any given situation that can assist in strengthening CSOs appropriately? The sub-fi eld of development concerned with strengthening civil society is still relatively new, and few answers have been provided to deal with issues of practical concern. Theory building in this new and emergent area will be both slow and inductive. Specifi c situations require far more a� ention to detail than theoreticians of civil society can usually provide, so deductive accounts are hardly suffi cient for this purpose. Inductive accounts, based on the experiences of pioneering projects, will therefore provide a major part of the learning required to assist and guide future endeavors. It is useful and important in this context to bring together insights and lessons from the pioneers’ examples - not merely to accord well

deserved recognition to their eff orts, but also to serve as a benchmark for future learning.

This case studies has been put together with this intention of promoting mutual learning among those concerned with advancing civil society solutions for development and poverty reduction. Eight case studies, representing an equal number of projects and countries, have been selected from among a host of instructive and interesting experiences examined by the editors. This selection of cases was based as much on the excellence of results achieved in any particular case as on the richness in which these experiences were documented. Each case leads the reader step-by-step through the various stages of its particular learning experience, elucidating how particular problems were satisfactorily resolved in a specifi c situation, and providing insights about how similar processes and programs can be developed in other countries and contexts.

These cases nevertheless represent a rich lode of practical experience, gained in a variety of diff erent situations, and relating to diff erent sectors, diff erent countries, and diff erent types of civil society organizations. The brief analytical framework presented below helps to organize these individual experiences into a cumulative body of knowledge that holds useful insights for practitioners as they deal with fi eld situations elsewhere in the developing world.

33

Global Experiences

Case Study of Australia

As a country with a long and strong history in extractive industries, Australia has a big change to deal with and possess advanced standards in FPIC implementation. It ratifi ed United Nations Declaration on the Rights of Indigenous People, although the policy was non-binding in nature. 52In reality, the acknowledgement of Australian companies remains low. In several occasions, Oxfam Australia stated that despite claiming their respect to human rights, representatives of companies did not support FPIC. As a consequence, the rights to informed-consent by indigenous people and local inhabitants aff ected by extractive industrial activities are separated from human rights.

Oxfam examined statements from 53 extractive fi rms included in the list of 200 companies listed in Australian Securities Exchange (ASX 200). Only 14 out the 53 companies publish their commitment to enact human rights in their entire operation. The fi gure is very low given the fact that this sector is linked to 2/3of human rights violation cases lodged by non-governmental organizations.

As many as 12 of the 53 companies assessed have announced their commitment to respect indigenous people. This commitment is o� en revealed in the human rights policy or policies on community or company’s codes of conduct of companies. Nevertheless, Australia has actually progressed, notably in Northern Territory with the existence of the Aboriginal Land Rights (Northern Territory Act) legalized in 1976, which served as a basis for Aborigine people there to claim tradition-based rights over land.

52 h� p://www.iaia.org/conferences/iaia12/uploadpapers/Final%20papers%20review%20process/Smith,%20Howard.%20%20Informed%20consent%20in%20Australia%E2%80%99s%20Northern%20Territory.pdf?AspxAutoDetectCookieSupport=1

This Act is the fi rst regulation which recognizes the rights of the Aborigine. The Aboriginal people controls 50% share of land in Northern Territory and 85 percent share in the sea. Four councils were established to represent Aborigine’s interest over land, namely Central Land Council, Tiwi Land Council, Northern Land Council, and Anindilyakwa Land Council. These councils are not perfect and still have to deal with some problems. The weak perception of inclusivity in consultations remains a major concern that can trigger legal cases. For instance, some Aborigine people expressed their disappointment over consultations pertaining to Rio-Tinto Alcan Gove Agreement (2011) and development of nuclear waste system. At the end, the Aborigine community decided to take legal actions to solve these cases.

Both government regulations and policies have hampered the implementation of FPIC. Although the Aboriginal Land Rights guarantees FPIC, it essentially forces the people to reject mining instantly or let the mining run without providing suffi cient information about the minerals mined, the impact and duration. The government policy views that environmental impact analysis as merely consultations because consent is already part of agreement process and initial contracts.53

Case Study of Norway: How to Respect Indigenous Peoples Overseas

Oil companies came to Norway in 1960s and by 2010 the Norwegian oil experience appears as an overall success, in the sense that many of the initial intentions were successful. Through Statoil, strategic state ownership, a strong professional

53 h� p://www.iaia.org/conferences/iaia12/uploadpapers/Final%20papers%20review%20process/Smith,%20Howard.%20%20Informed%20consent%20in%20Australia%E2%80%99s%20Northern%20Territory.pdf?AspxAutoDetectCookieSupport=1


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institution like the Petroleum Directorate and above all through the continual buildup of technological know-how, Norway has managed to ensure that most of the economic rent from oil has gone to the state, and hence to society. Additionally, in line with the increasing number of transnational companies involved in oil, gas and mineral sectors, Norwegian registered or have signifi cant investments from Norway’s large pension fund, operate in territories of Indigenous Peoples overseas such as In Philippines, Canada, Burma, Russia, Alaska etc. A number of those projects are having, or have the potential to have, profound negative impacts on these indigenous peoples’ enjoyment of their rights.

In that case, Norway has taken some positive steps to address human rights violations of companies operating in indigenous territories overseas in which it has investments for example removing companies such as Barrick Gold, Freeport-Mc-Moran, Rio Tinto and Samling Global from its pension fund portfolio. Norway also consider updating its 2004 ‘guidelines on eff orts to strengthen support for Indigenous Peoples in development cooperation’ to refl ect the provisions of the UN Declaration on the Rights of Indigenous Peoples, in particular its requirement for FPIC. Norway has also been proactively supporting

initiatives such as Reducing Emissions from Deforestation and Degradation, which requires respect for indigenous peoples’ rights including the requirement to obtain their FPIC. In addition, Norway’s responsibility towards Indigenous Peoples impacted by its own actions or by the actions of its corporations has been addressed in a number of Norwegian foray.

In 2004 the Norwegian Ministry for Foreign Aff airs published ‘guidelines on eff orts to strengthen support for Indigenous Peoples in development cooperation’, commi� ing to a human rights-based approach to development cooperation premised on ILO Convention No. 169. Likewise a 2003 report ‘Look North! Challenges and Opportunities in the Northern Areas’ produced by Norwegian Government appointed commi� ee of experts in 2003 included a unanimous recommendation that ‘public and private petroleum companies in Indigenous areas must comply with the consultation requirements of ILO-169 as the basis for their activities’.54 The report also stated that: ‘In light of ILO the term FPIC constitutes a foundation when it comes to requirements for companies seeking to operate in indigenous territories.’55

54 See Norway fi nds Canada’s largest publicly-traded company, Barrick Gold, unethical h� p://www.corpwatch.org/article.php?id=15286 Norwegian government declares Malaysian timber giant an unethical company h� p://www.culturalsurvival.org/news/malaysia/norwegian-government-declares-malaysian-timber-giant-unethical-company; see also Norway throws out Freeport June 2006 h� p://www.minesandcommunities.org/article.php?a=220 and Norway blacklists miner Rio Tinto September 2008h� p://news.bbc.co.uk/1/hi/business/7608097.stm

55 Look North! Challenges and Opportunities in the Northern Areas’ produced by Norwegian Government appointed commi� ee of experts in 2003, (henceforth Look North! Report) available at: h� p://www.regjeringen.no/Rpub/NOU/20032003/032/PDFS/NOU200320030032000DDDPDFS.pdf.

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Lesson Learnt & Recommendations

Lesson Learnt on Regulation Framework

A� er entering post-dictatorship era, both Indonesia and the Philippines have recorded progress in acknowledging community’s rights. Regulations were made to promote these rights by way of FPIC mechanism. However, in Indonesia’s case, the rules that arrange FPIC implementation to ensure protection of people’s rights are still too general. The same situation applies in institutions authorized to supervise execution of FPIC. By comparison, the Philippines have advanced some steps ahead following the issuance of Indigenous People’s Rights Act in 1997 and the establishment of National Commission on Indigenous Peoples (NCIP). The community is entitled the rights to give consent or not over the plan of extractive activities within their living spaces. The presence of concrete and detailed regulations to govern FPIC brings an ease to carry out advocacy with rights-based approach. In contrast, the absence of necessary regulations and institutions in turn result in diffi culties to protect community rights as seen in Indonesia’s case.

Through its decree passed in 2002, the Indonesian Constitutional Court acknowledges the rights of Indigenous Peoples over forests, which is in fact, a progress. Unfortunately, more detailed regulations remain absent. Home Aff airs Minister Regulation No. 52 of 2014 on guidelines on acknowledgement and protection of indigenous peoples’ rights only stipulates the establishment of indigenous peoples’ organizations and has yet to include protection of these rights through FPIC mechanism.

Lesson Learnt on Role of CSOs and Community Empowering

Civil society organizations play a signifi cant role in the advocacy of community rights. In the case of Kulonprogo, Yogyakarta, legal aid institutions and environmental groups assist the people to fi ght for their living spaces against penetration mining fi rms. Civil society organizations raised the case of Kulonprogo people as evidence that constitutional rights of the people over healthy environment and property rights have yet to be acknowledged in a concrete manner through Mining Law No. 4 of 2009. They also presented community members as witnesses. The ability of civil society organizations in Indonesia to capture the problem in the fi eld, which is the absence of approval from indigenous people and other people aff ected by extractive industries thereby triggering confl icts, and link it to policy advocacy through material review of laws, such as Mineral and Coal Mining Law as well as Forestry Law must be maintained and improved. Repeated problems within the community, such as confl icts in mining and environmental problems, stems from regulations that have yet to govern in details or their bad implementation. This is why analysis by civil organizations is very important.

Lesson Learnt on Policy and Institutional Advocacy

The existence of National Commission on Indigenous Peoples (NCIP) in the Philippines has contributed to the fi ght over the rights of indigenous people communities. The function of the National Commission of Indigenous Peoples is to address the issues and concerns of the country’s Indigenous people. There is a specifi c provision in this Act pertaining to mining and Tribal lands and


36

generally speaking any land that is not titled in the Philippines is more o� en than not considered part of the Ancestral Domain. Having said that in order for any mining company to commence mining activities they must fi rst get a mining permit and a pre-requisite to obtaining a mining permit is to get FPIC from the Indigenous Tribal Community and then have that certifi ed and approved by the 7 Commissioners comprising the NCIP.

The process commences when there is a potential site to being considered by a Mining

company we would send liaison personnel to the area to talk with the actual Tribal leaders (Datu’s) and discuss our interests with them and if they would be open to the idea. If at this stage the Datu controlling the area objects or even the Datu’s in neighboring areas object then we would not proceed, it would be an exercise in futility. NCIP existence has help that indigenous community right will be be� er defended. Indonesia still needs special institution to ensure that FPIC is done in all extractive areas.

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Government & Nonprofit

Community Right Base Advocacy on Extractive Industries