they need to move beyond a mind-set which frames all choices in monetary terms. The case
indicates the underlying demand of communities in the assertion of FPIC is to have a genuine
choice of development models, which should include but cannot be limited to those premised on
western conceptions of economic progress. The expectation in Colombia is that other communities
will increasingly adopt similar strategies to assert their self-determination right to set the terms of
consultations, and, if they so choose, to withhold consent. Unless companies rectify their relationship
with indigenous peoples the reality is that it will become increasingly difficult and ultimately impossible
for them to work in indigenous territories.
Observations
The Resguardo has declared its entire territory as a ‘no go’ zone for large-scale mining. This decision
was taken because the communities felt that given the state of armed conflict, and the threats to
leaders who speak up for their rights, the enabling conditions are not in place for ‘free’ prior and
informed consent to be sought and granted. A second factor is that the Resguardo territory is very
limited relative to its population size. As a result any large-scale mining within it would affect the
capacity of the people to guarantee their food security and practice their livelihoods.
The case highlights the issue of whether or not the ‘free’ dimension of FPIC processes can ever
by realized in a context of armed conflict. It also begs the question as to whether companies can
comply with their human rights obligations while operating in such conditions, and if they should
even consider attempting to conduct mining operations in these contexts given the potential for
grave human rights violations.
The case of the Subanen of Zamboanga Peninsula, Philippines
The experience of the Subanen people112 of Zamboanga Peninsula in Mindanao, Philippines, is
a case of indigenous peoples who have had negative experiences in engaging in flawed FPIC
processes and have asserted their own conceptions of FPIC to ensure future processes comply
with, and protect, their rights, including their right to self-determination. To do this they have asserted
their customary laws and formulated their own guidelines for culturally appropriate FPIC processes.
This has been done in a context where the existing government FPIC guidelines and implementation
have been found defective and in violation of customary law. The case study provides an overview
of the specific experience of the Subanon of Mt Canatuan and then addresses the response of the
wider Subanen people whose communities are spread across the Zamboanga Peninsula.
Context
The Zamboanga peninsula is a priority mining area in the Philippines under the government’s
policy to revitalize the mining industry. The peninsula, which was traditionally Subanen territory,
is home to some 300,000 Subanen who now represent a minority of the population and whose
ancestral domains are scattered throughout the peninsula. The area has been host to several mining
applications over time by international and national companies including Rio Tinto, TVI Resources
Development Inc. (TVIRD), Ferrum 168, Geotechniques and Mines Inc (GAMI) and Frank Real Inc.
In spite of the fact that FPIC is legislated for in the 1997 Indigenous Peoples Rights Act (IPRA),
numerous violations of customary laws and FPIC have been documented in relation to the selection
of community representatives and decision-making processes to obtain consent for mining
activities in Zamboanga. Some of the violations are by the government’s National Commission
on Indigenous Peoples (NCIP). In addition, FPIC processes have been conducted only in certain
selected areas within the Subanen ancestral domains, without the participation of other affected
Subanen communities, and without due respect for traditional territorial boundaries and governance
structures. The NCIP has also initiated new FPIC processes each time new mining applications are
submitted resulting in the Subanen facing numerous simultaneous and separate FPIC processes.
Making Free, Prior and Informed Consent a Reality
29