A Praxis-Based Approach to Human Rights:
Mining and the Free, Prior and Informed Consent in
the Philippines
June 28th, 2014 Young Researcher’s Network for Human Rights
CALE, Nagoya University Jean-Isamu Taguchi
This presentation will cover…
I. Introduction
What is the FPIC?
Approach to the topic
II. Background of the case study
Stakeholders interests
Relevant law
III. Legal Pluralism and Empowerment
How the stakeholders of a mining project can mobilize different legal systems
IV. How to Overcome Uncertainty and Conflicting Norms in Legal Pluralism?
Criticism to legal pluralism: Uncertainty and conflicts with human rights standards
Potential solutions
V. Conclusion
Proposal for further research in human rights
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I. Introduction
Aim of this study:
Study the protection of international human rights in a given cultural context
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I. Introduction
What is FPIC?
Process that gives the possibility to Indigenous People to accept or refuse a project, according to their own decision-making process
Importance of the FPIC process
Mechanism to protect indigenous peoples’ rights
Positive law: included in international conventions and declarations
Key instruments for conservation policy, natural resources and infrastructure projects,…
Social license to operate for companies
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I. Introduction
Situation in the Philippines:
FPIC is mandatory under Philippines law since 1997, through the adoption of the Indigenous Peoples’ Rights Act
“consensus of all members of the community to be determined in accordance with their respective customary laws and practices, free from any external
manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of an activity, in a language and process understandable to the community” (IPRA, Ch. II, Section 3-g)
Implementation remains challenging, as numerous recent reports show
Violations: lack of consultation, lack of information, traditional decision-making process is not respected
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I. Introduction
Previous studies on FPIC based on Human Rights perspective
Omission of the legal plural context
What is legal pluralism?
“Two or more legal systems that operate in one political space” 6
I. Introduction
Approach: “Plurality of laws, Plurality of interests”
Analysis of the interests at stake and the way the stakeholders of the mining project leverage the FPIC process
What provides this approach?
Contributes to FPIC studies
Provides extensive understanding of the FPIC process:
Context
practice of the law
The axiom “Plurality of law, plurality of interests” is an element
of context and an analytical tool
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II. Background
Mining in the Philippines and its
impact on Indigenous People
Impact of mining on the environment: air, soil, and water pollution, harmful impact on biodiversity
Indigenous people represents 18% of the population in the Philippines, more than 60% in the Cordillera Region
60% of mining projects are implemented on indigenous territories
Militarization of the mining zone, violation of human rights through extra-judicial killings
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II. Background
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Mankayan
FPIC in Mankayan for Lepanto
Consolidated Mining Company
II. Background
Presentation of the case study:
Lepanto Consolidated Mining Company has mining
rights in Mankayan, a municipality in Cordillera region in
the Philippines.
Lepanto operates within a joint Venture with Gold Fields:
60% ownership for Lepanto) - 40% for Gold Fields
Purpose of the mining project: Convert mining rights into
a new permit that allows 100% ownership by foreign
investor
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II. Background
Presentation of the case study:
The stakeholders: Lepanto Mining Company, Indigenous
People, National Commission on Indigenous Peoples ,
NGOs, Local Government
Interests at stake: Investment, land rights, environmental
protection
Relevant norms: State law, customary law
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II. Background
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Mining permit obtained in 1990 and 2000
•Interests at stake: protection of Lepanto's vested rights
•Applicable Law: IPRA, Section 56
Application for a conversion of the permits
in 2014
•Interests: Lepanto needs a quick process; the indigenous community must be consulted; opposition of NGOs
•Applicable law: national law
FPIC Decision-
making process
•Interests: Protection of the indigenous land rights and traditional decision- making process; Supervision of the process by the State, through NCIP
•Applicable law: customary law, national law
Negotiation of the MoA
•Interests of the indigenous and expected outcomes: Benefit sharing, self- empowerment
•Applicable law: customary law
Section 56 recognizes and protects the vested
property rights individuals and companies operating on indigenous territories before the adoption of IPRA
IPRA requires the consultation of Indigenous people before the project implementation
Application of customary law for decision-making process
Application of state law: definition of the FPIC process, respect of international human rights standards
Application of customary law in the negotiation with mining company
III. Legal pluralism and empowerment
1. Empowering Indigenous People in their struggle against
mining company
Lepanto vs NGOs
NGOs contested the mining rights obtained in 1990 and 2000
NGOs relied on customary law to contest the decision- making process, the legitimacy of the leaders
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III. Legal pluralism and empowerment
1. Empowering Indigenous People in their struggle against
mining company
Lepanto vs Indigenous People
Customary decision-making process: the elder decide on the basis of a consensus
However, for the FPIC process, use of majority vote
Hybrid process: mix of customary and “democratic” process
Imposition of customary law in the negotiation of the MoA, Indigenous people strongly defends their interests.
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III. Legal pluralism and empowerment
2. Empowering Indigenous People to Exploit Natural Resources
Case of Carrascal Nickel Corporation (CNC)
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Indigenous community regulated by customary law
Incorporation in BKTI 2006
Regulated by national corporation law Use Priority rights to exploit resources as
provided by the IPRA
Faction B - Victor Gumisa, President of BKTI
Dismissed by the board under national corporation law in 2009
Faction A - the board of BKTI
Contract with CNC under national law
Gumisa contests the contract, demands an FPIC process the respect of his statute of
traditional leader
III. Legal pluralism and empowerment
Summary and conclusion
Juggle legal sources
Legal pluralism rebalance negotiation power
Limitations:
Highly contextual: not all indigenous people are empowered
Customary law and traditional political structures are not always adapted
Need of hybrid and well adapted structures
16IV. How to overcome uncertainty and
conflicting norms in plural legal systems?
1. Potential Conflicting Norms with human Rights Standards
o Women Rights o Migrants Rights
o Property Rights: evolution and issues 17
IV. How to overcome uncertainty and
conflicting norms in plural legal systems?
1. Potential Conflicting Norms with human Rights Standards
How to interpret the “consensus of all members of the community” (IPRA, Ch. II Section 3-g)?
Inclusive interpretation, respectful of human rights standards
Interpretation more respectful of the customary law
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IV. How to overcome uncertainty and
conflicting norms in plural legal systems?
2. Uncertainty
Often considered as a weakness of legal pluralism
Risks of forum shopping, law shopping
Plurality of norms can be used for personal interests
Lepanto case: Luspian is also Municipality Mayor
CNC case: Gumisa brought the case in two different jurisdictions
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IV. How to overcome uncertainty and
conflicting norms in plural legal systems?
3. Potential Solutions
Overlap between two legal systems create a “grey-zone”
This grey-zone influences the outcome of the mining project and the interactions between legal systems
There is a room for changes and adaptation: Culture, law, and human rights are not monolithic
It is not enough to recognize legal pluralism, it is also necessary to analyze how stakeholders mobilize and leverage the law
On this basis, it is possible to provide rationalized interface between legal systems with adapted hybrid institutions
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V. Conclusion
Praxis-based approach can provide good insights for a
“bottom-up” strategies to human rights protection
Help to understand how functions a human rights protection mechanism
Prevent from an approach conflicting with local values and practices
Can be useful to enshrine human rights in the body of the living law
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