REALITIES ON THE GROUND; EXPERIENCES AND LESSONS LEARNED

RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 46 Gaps Analysis UNDRIP NATIONAL OR GAPS CONSIDERATIONS OPTIONS PROVISIONS ON LOCAL LAWS IMPLICATIONS RECOMMENDATIONS FREE, PRIOR OR POLICIES INFORMED CONSENT Paragraph or Specific laws, Specific laws, Can current laws, What needs to be Article number policies policies NOT policies be used to done? How? By conforming conforming support indigenous whom? Where? with UNDRIP with UNDRIP peoples’ positions When? For how or interests? Are long? there loopholes in the law that can be used for or against indigenous peoples? Should the matter be approached legally? Or politically? Module-2 First ask the participants if they know of any laws and policies in their country that provide for free, prior, informed consent or some semblance of it, and how these laws and policies are complied with or imple- mented. If such laws and policies exist, ask them to fill up a Gaps Analysis table. Suggested Method RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 47 EXAMPLE: MANEUVERING AROUND FPIC REQUIREMENTS FOR THE SAN ROQUE DAM PROJECT, PHILIPPINES Note: The barangay , which will be fre- quently referred to below, is the smallest political and administrative unit in the Philippine local government system. In 1994, the government of Fidel V. Ramos President from 1992 to 1998 invoked the existence of an energy shortage to revive the dam projects of his kinsman, deposed dicta- tor Ferdinand E. Marcos President from 1965 to 1986. These included the construction of the San Roque dam along the boundary of the Cordillera province of Benguet and the low- land province of Pangasinan. The dam was to be 200 meters high and 1.13 kilometers wide. It was to be built on the Agno river. The dam itself would be erected between the Pangasinan municipalities of San Manuel and San Nicolas. But the reservoir that it would create was going to reach into the mu- nicipality of Itogon within the province of Benguet, where two other large dams had already been installed on the Agno during the 1950s. Sedimentation and flood studies indicated that the silt build-up behind the San Roque megadam would meet with silt spillage from the two older dams. All villages between San Roque and these two dams were thus threatened with partial, if not total, inundation. The village that constituted Barangay San Roque, would be dismantled. This was occupied by nearly 600 migrant Ilocano households. Eight villages would be drowned in the reservoir. These were occupied by about 90 households of Kalanguya, Ibaloy and Kankanaey indigenous to Benguet, along with about 10 households of migrant Ilocano. The members of nearly 40 more in- digenous Benguet and migrant Ilocano households frequented the vicinity of all the eight villages to cultivate swiddens, pasture cattle, and extract gold placers from the waters and the riverbanks of the Agno. Upstream of the reservoir, in the municipality of Itogon, about 5,000 Kalanguya, Ibaloy and Kankanaey households were going to be affected by sedimentation and flooding. In addition to them, over 3,000 households were going to have their livelihood activities affected by watershed management regulations. In 1995, immediately after Ramos announced his plan to build the San Roque dam, the lead- ers of affected communities in Itogon expressed their opposition to the dam project. And in 1996, the members of the affected communities in barangays Itogon Proper, Tinongdan, Dalupi- rip and Ampucao petitioned the Office of the President to cancel the project. They successfully lobbied local government units to support their petition. This would have stalled the project because Philippine law required local government endorsement for any project that would gen- erate a high impact on the environment. Module-2 Now ask the participants if they can share experiences in relating or struggling with the state andor with corporations that had plans for them andor their territo- ries and were thus, in principle, supposed to seek their free, prior, informed consent regarding these plans; If the participants have no experiences or knowledge to share, or if you need to cite examples to help them start their discus- sion, you may input either or both of the Philippine examples provided below. Suggested Method RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 48 But Ramos went on a campaign to change the minds of local government officials. He com- mitted 300 million pesos worth of development works to the various barangays and the munici- pality of Itogon, and promised even more benefits to the province of Benguet. The Governor of Benguet joined Ramos’s campaign. He got the Mayor and Municipal Council of Itogon, as well as the Chairs of the Barangay Councils of Dalupirip and Ampucao, to reconsider their position. But the Provincial Board of Benguet took a firm stand in support of the communities, against the construction of the San Roque dam. Towards the end of October 1997, the Indigenous Peoples’ Rights Act IPRA became law, and with it the stipulation that the proponents of projects affecting indigenous peoples secure their free, prior, informed consent. The IPRA Implementing Rules and Regulations IRR at the time equated consent with consensus. Even a single dissenting voice in a community could chal- lenge a hundred votes of consent to a project. But Ramos had already awarded the contract for the construction and operation of the San Roque dam earlier in the month, to a conglomerate composed of three transnational corpora- tions, Sithe Energies, Marubeni, and Kansai Electric. This conglomerate was to be known as the San Roque Power Coporation SRPC. Ramos also had groundbreaking ceremonies held at the dam construction site although no actual work could yet be done by the SRPC’s subcontractor for construction, another transna- tional called Raytheon, because the occupants of the site had yet to be relocated. The awarding of the contract and the holding of groundbreaking ceremonies sparked in- tense protest. By the end of 1997, the opposition to the San Roque dam project was already being transformed into an organized and militant mass movement, and from 1998 to 1999, this movement spread throughout the Municipality of Itogon. But the Ramos government and the succeeding government of Joseph Estrada President from 1998 to 2001 continued to ignore the protest. Instead of addressing it, the government had the state-owned National Power Corporation NPC work with the SRPC so that they could forcibly relocate the Ilocano occupants of the dam site and start construction. The NPC was also to work with the newly created National Commission on Indigenous Peo- ples NCIP on negotiating with individual heads of Benguet and Ilocano families whose house- holds would be dislocated from the dam’s reservoir area, so that they would accept relocation and compensation, and their acceptance could be used as an indication of consent. To complement government efforts, Marubeni engaged a non-governmental organization known as Veritas Truth in the task of persuading affected Benguet communities to accept the project. Veritas staff went around Itogon to tell people to “Just accept the project because it has already commenced and you cannot stop it. But you can still make the most of the situation by demanding fair compensation for your lands, houses, trees and other land improvements, and asking for other benefits.” Communities became divided between people who remained stubbornly opposed to the project and those who were already resigned to it. While the latter signed compensation ac- ceptance documents, the former petitioned the NCIP to issue a cease and desist order to the San Roque dam builders, invoking the absence of a consensus in favor of the project, as obvious from the persistence of their protest. Module-2 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 49 The NCIP, however, was paralyzed: it could not act on the petition. Evelyn Dulnuan, the first NCIP Chair appointed by Gloria Macapagal Arroyo President from 2001 to the present had herself conducted an investigation from which she concluded that the proponents of the San Roque dam project had failed to comply with FPIC requirements and were unlikely to ever obtain consent to their project. But she explained to a delegation of the Itogon Inter-Barangay Alliance IIB-A that “The NCIP is under the Office of the President, and the President won’t let me do anything. She has me by the scruff of the neck.” In 2002, Dulnuan finally issued a statement to the effect that the NCIP could not make any decision on the matter of the FPIC of the indigenous peoples affected by the San Roque dam project because the contract for the project had been signed before the IPRA took effect, and the law could not be applied retroactively. The IIB-A thus prepared to take the case to court. But preparations for the suit took the lawyers so long that by the time the papers were ready in mid-2002, the dam had already been completed, and water impoundment had begun. In October, the IIB-A, through the Cordillera peasant federation APIT TAKO in which it was a member, filed a report with the UN Special Rapporteur on indigenous peoples. Based on this, the Special Rapporteur told the Economic and Social Council’s Commission on Human Rights Economic and Social Council 2003b: 19-20: This has occurred because local mechanisms for the protection of indigenous rights have not been effective. The indigenous communities of the municipality of Itogon tried to avail them- selves of the mechanism provided by the Philippines’ Local Government Code to withdraw en- dorsement of the dam, but the project continued. The Philippines’ Indigenous Peoples’ Rights Act provides for free and prior informed consent and enables an indigenous community to prevent the implementation of any project which affects its an- cestral domain in any way by refusing consent to the project. Though Itogon’s indigenous commu- nities petitioned the National Commission on In- digenous Peoples to suspend the project because free and prior informed consent had not been given, the commissioners declined to act on the petition. Thus, the laws designed to protect the indigenous communities were in fact ignored.

IV. CHALLENGES

A. Needs, Capaciies, Strategies

Needs, capacities and strategies will obvi- ously vary, from country to country, from one indigenous people to another, and from situa- tion to situation. In general, however, we can say that in most Asian countries: • the paramount need is for national legis- lation providing for the right of indigenous peoples to free, prior, informed consent on all matters that pertain to or affect them and their territories, the lands these encompass and the other resources these hold. Synthesize the main points that have aris- en from the discussionsharing. Ask the participants to identify what lessons they have learned. Synthesize these lessons. Suggested Method This final section should be a participatory process of envisioning and identification for the particular context of the partici- pants. Discuss with the participants the three main points as listed below: • Needs, capacities, strategies • Implementation • Monitoring Split up the participants into workshop groups, and have them do poster presen- tations afterwards, in plenary. Suggested Method Module-2 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 50 Correspondingly, we can say that the major concerns are • what strategy should indigenous peoples employ to achieve such legislation, and • whether indigenous peoples have the capacity to implement such a strategy.

B. Implementaion and Monitoring

In some Asian countries, the challenge is not the absence of favorable laws or policies but rather the violation or non-implementation of these, as is the case in the Philippines. In such cases, the challenge to indigenous peoples is that: • They be vigilant and keep track of all policies, programs and projects, actions and activities outlined for them or their territories. • They demand that each and every policy, program and project, action and activity affecting them go through the FPIC process – i.e.: » • prior to the implementation of the policy, program or project, action or activity, » • all information about it and its implications be divulged to their communities; » • their communities are afforded time to deliberate the matter according to custom- ary processes; » • their communities are given freedom to say yes or no, and their answer will be respected. • If communities consent to a policy, program or project, action or activity, they deliber- ate among themselves what terms or conditions they should ask for, negotiate for these assertively and lay these down clearly in a memorandum of agreement with the entity con- cerned. • They monitor the implementation of the agreement vigilantly. 1.The trainers should discuss with the participants the current situation of capacity needs of the communities, their weaknesses and strengths, and the possible forms of training, organizational reforms, networking etc., that may be required to enhance the capacities of indigenous peoples’ organizations. 2.The discussions on capacities should be at all levels: local, na- tional, international. It is very common to find that most indige- nous peoples’ organizations have little or no voice in their national capitals. Thus capacity-raising of indigenous peoples’ organiza- tions at national levels could constitute an integral part of the trainings. Besides the capacity for lobbying national legislators, the capacity for media projection should be considered, likewise the possibility of establishing a national network of indigenous peoples’ organizations with an office in the national capital. Note to trainers 1. The capacity to handle technical information and assess their implications is, in many cases, lacking among communities. This is a challenge in itself – one that needs to be seriously addressed if efforts to secure FPIC implementation are to be effective. 2. As above, the need for organization and networking is a signifi- cant challenge. Note to trainers Module-2