that its FPIC Guidelines provided for this. This was despite the fact that the Subanen protocol was
devised explicitly to address areas where the Guidelines contradicted, or were in violation of, their
customary law.
Pressured by demands of indigenous peoples throughout the country, the NCIP suspended all FPIC
processes in late 2011, pending the review of the 2006 FPIC guidelines and the determination of
appropriate guidelines for implementation. The review process led to the issuance by the NCIP of
the Revised Guidelines on FPIC and Related Processes of 2012.
Observations
The experience of the Subanon of Mt Canatuan underlines the importance for companies of ensuring
that they are talking to the right people and abiding by existing customary laws and traditional
processes of decision-making. It also provides a rare example of where a company has been found
guilty under an indigenous peoples’ own judicial authority of violating their customary laws, including
the failure to obtain their consent, and where that company eventually recognized the ruling and
agreed to negotiate the penalties which it imposed. It therefore provides an interesting case for
indigenous peoples and companies to consider in the context of appropriate grievance mechanism
to address violations of indigenous peoples rights.
Based on their experiences of flawed FPIC processes which failed to respect their rights and
customary laws, the Subanen people as a whole decided to formulate their own rules around FPIC.
This unified coming together of Subanen communities from across the Zamboanga peninsula to
develop their FPIC Manifesto was empowering for all of the Subanen communities involved. It
counters the potential for the imposition of unrepresentative structures as the legitimate authorities of
the Subanen communities are recognized by both their community members and by other Subanen
communities. Furthermore, it addresses the deficiencies in the national FPIC guidelines, which due
to their bureaucratic nature are unable to respect the diversity of indigenous peoples.
For companies, following community protocols provides an opportunity to avoid risks and conflicts
with the community and is more advantageous than merely following the government process, which
has been proven defective and in violation of indigenous peoples’ rights.
Based on their experience the Subanen are of the firm opinion that once a community has decided
against mining within their domain, then no further mining applications should be entertained until
the community decides otherwise. In addition, once a mining application is rejected, the community
decision is seen as final and is not subject to appeal. They see these requirements as essential to
the meaningful operationalization of FPIC. Otherwise repeated processes are imposed on them
with which they lack the capacity to engage. If this happens FPIC processes are transformed into a
mechanism for justifying the imposition of a project as opposed to a tool for the operationalization of
the right to self-determination.
Kitchenuhmaykoosib Inninuwug (KI) First Nation – FPIC protocols as a
means of resistance.
The Kitchenuhmaykoosib Inninuwug (KI) territories are located in Northwestern Ontario, Canada. In
1998, Platinex acquired claims for exploration rights in their territories 20 kilometres south of Big Trout
Lake.119 In 2000, the KI First Nation, declared a moratorium on mining.120 Platinex’s initial attempts
to enter KI territory in 2006 were met by community opposition, which included the presentation of
eviction notices to the company and culminated in a stand-off between community members and
corporate security. Platinex proceed to file an injunction against the community and sought 10 Billion
dollars in damages.
In July 2006, the Superior Court of Ontario found in favour of the KI community granting them
an “interim interim” injunction against Platinex. A draft KI consultation protocol, produced in 2006
in the context of Platinex’s attempted entry, was addressed by the Judge when ordering a five
month suspension of drilling to allow for consultations. The KI protocol contained a form of consent
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Making Free, Prior and Informed Consent a Reality