SMI – Xstrata – Tampakan Copper-Gold Project
Company: Xstrata Copper (with local Partner: Sagittarius Mines, Inc. (SMI))
Name of Project: Tampakan Copper-Gold Project
Location: 4 provinces of South Cotabato, Sultan Kudarat, Sarangani and Davao del Sur in Mindanao,
Philippines (covering 9,605 hectares)
Indigenous Peoples: B’laan
Minerals: 2.94 billion metric ton deposit of 0.51% copper and 0.19 grams/tonne gold
Current Status: Exploration and feasibility studies completed
Observations arising from the Tampakan case study and the Philippines Context
The researchers prepared a case study on the operationalization of FPIC at the prospective coppergold mining project of Xstrata-Sagittarius Mining Inc. (SMI) in the Philippines. However, due to the
limited time available and disagreement over some of the findings it was not possible to agree the
full text. In light of the decision not to include the full case study it was agreed to limit the section to
some general Philippine contextual observations which have implications for all mining companies
seeking to obtain FPIC.
The Philippines is an important country for documenting the application of the UN Declaration
and FPIC of indigenous peoples in relation to mining. This is because the Philippines has national
legislation, the Indigenous Peoples Rights Act (IPRA) of 1997, which was modelled on the then draft
UN Declaration and requires FPIC for mining projects in indigenous territories. Despite this robust
legal framework for the protection of indigenous rights, the approach adopted by the government to
the implementation of FPIC has been subject to strong criticism by indigenous peoples nationwide.
They hold that the government’s implementation guidelines fail to ensure respect for their customary
laws and that their experience indicates that FPIC is implemented in a manner which is strongly
biased towards supporting government aspirations to increase foreign investment rather than uphold
and guarantee respect for indigenous peoples rights.160
Some indigenous peoples have also been frustrated by the national courts’ failure to uphold their
rights in the context of legal challenges taken against mining companies.161 As a result they have
engaged international mechanisms to raise their grievances. Their allegations that the responsible
government agency and companies seeking to operate in their territories have failed to protect
their rights by implementing FPIC in an appropriate manner has been recognized by the UN
Special Rapporteur on the Rights of Indigenous Peoples, the UN Committee on the Elimination of
Racial Discrimination, the Norwegian OECD National Contact Point and the International Finance
Corporation Compliance Advisor Ombudsman.162
This context presents a major challenge to any mining company seeking to operate in such a
jurisdiction, as simply following the government’s implementing rules for FPIC is unlikely to lead to
a genuine FPIC process. It underlines the need to go beyond statutory guidelines and processes
prescribed by government and to comply with internationally recognized human rights standards for
meaningful operationalization of FPIC in the recognition of indigenous peoples’ rights.
The context is further complicated by the fact that the Philippines has a significant level of armed
conflict, particularly in the remoter areas of the country. There are concerns that large-scale mining
projects may divide communities between those who readily want access to promised economic
benefits of investment and those who have concerns over its impacts to their rights and indigenous
way of life. There is a perception among indigenous peoples that divisions are reinforced by violence
associated with the intervention of government agencies, military and paramilitary groups and the
presence of illegal and rebel armed groups. The implementation of FPIC becomes a major challenge
in contexts where community members and company personnel have been killed. In regions of the
country with a history of human rights abuses in the context of extractive operations there are unique
challenges to assess whether consent is genuinely freely given.
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Making Free, Prior and Informed Consent a Reality