Cagayan de Oro City – The Integrated Forest Management Agreement (IFMA) permit issued by DENR and Awarded to Southwoods Timber Corporation (STC) is without the IP Community consent as showed by the opposition signed by the key leaders of MIHITRICO ( Minalwang Higaonon Tribal Council) last January of 2007. MIHITRICO was granted the Certificate of Ancestral Domain Title (CADT) by the National Commission on the Indigenous Peoples (NCIP) last October 9, 2008 covering 18,028.63 hectares in the Barangay of Minalwang, Claveria Misamis Oriental. The CADT was recently awarded to the community by NCIP in the area last November 19, 2009 with assigned number of R10-CLA-1008-084 after almost eight (8) years of processing from a Certificate of Ancestral Domain Claim or CADC 114.

Minalwang Higaonon must be the community who would give the consent or the Free Prior Informed Consent (FPIC) as provided by Department Administrative Order 1 series of 2006. The FPIC guidelines of 2006, the NCIP facilitates FPIC activities in the IP communities and acts as a third party witness to the Memorandum of Agreement (MOA) between th propject proponent and the IP community once the community gives their consent. If consent is secured,the NCIP also issues a Certification Precondition (CP) which confirms that project proponent has complied with the 2006 FPIC Guidelines. In the case of STC, NCIP issued a certification that there was NO CONSENT given by the Higaonon of Minalwang represented by MIHITRICO as the legitimate CADT or Indigenous Cultural Communities (ICCs). This shows that the Logging permit issued to STC covering 11,476 hectares of which 8,000 plus hectares are within the Ancestral Domain of MIHITRICO is invalid. The fact that the STC already operating in Sitios within Barangay Minalwang, their operation is illegal.

The Indigenous Peoples Rights Act (IPRA), specifically Section 3g, defines FPIC as “the consensus of all members of the indigenous cultural communities (ICCs)/indigenous peoples (IPs) 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 the activity, in a language and process understandable to the community.”

That consent is the basis for relations between states and indigenous peoples was observed as early as 1975 by the International Court of Justice in its advisory opinion in the Western Sahara case. In that case, the Court stated that entry into the territory of an indigenous people required the freely informed consent of that people as evidenced by an agreement.[i]

The principle of free, prior informed consent is acknowledged in several international human rights law instruments. The International Labour Organization Indigenous and Tribal Peoples Convention, 1989 (No. 169) refers to the principle of free and informed consent in the context of relocation of indigenous peoples from their land in its article 16. Article 7 recognize indigenous peoples’ “right to decide their own priorities for the process of development” and “to exercise control, to the extent possible, over their own economic, social and cultural development.” In articles 2, 6 and 15, the Convention requires that States fully consult with indigenous peoples and ensure their informed participation in the context of development, national institutions and programmes, and lands and resources. As a general principle, article 6 requires that consultation must be undertaken in good faith, in a form appropriate to the circumstances and with the objective of achieving consent.

The draft United Nations declaration on the rights of indigenous peoples (Sub‑Commission resolution 1994/45, annex) is an important emerging instrument that explicitly recognizes the principle of free, prior and informed consent in its articles 10, 12, 20, 27 and 30.[ii]

The immediate cancellation of the IFMA permit issued to STC was pushed by the Higaonon community as this would compete their traditional resource use management and traditional governmance of the community. The IFMA permit would then encroach their Ancestral Domain in the next 25 years, the life-span of an IFMA permit. However, the proponent can extend another 25 years if the community allows the renewal of the project as provided in section 2, Art. 12 of the Philippine Constitution.

While we think that logging is a development project, it doesn’t correlate that this is also the development that the IP community wants. This would push the IP community to be more “marginalized” as the community is prevented even in the their “Pangayam” or hunting activities, “Kanduli” or community ritual because their land is already leased to corporations for 25 years. This would mean that the access and control of the Ancestral land is already in the hands of the corporations. The granting of CADT is in respond to the social injustices of the IPs/ICCs who have been deprived of non-recognition of their domains and lands since time immemorial. This has been corrected by the Indigenous Peoples Rights Act or R.A. 8371.

Carl Cesar C. Rebuta
Team Leader
Legal Rights and Natural Resources Center
Cagayan de Oro Regional Office

[i] International Court of Justice, Western Sahara: Advisory Opinion of 16 October 1975, ICJ Reports 1975. See, also, M. Janis, The International Court of Justice: Advisory Opinion on the Western Sahara, 17 Harv. Int’l L.J. 609, 61 (1976).

[ii] “The UN Draft Declaration identifies and includes provisions addressing many further crucial issues in such relationships, but does not connect these expressly to self-determination in the way advocated here. The dynamic of the UN process has been rather the opposite, treating self‑determination as an end-state issue and separating the debate on self-determination from the structuring of relationships. The Draft Declaration provides much of the material from which the concept of self-determination may be reconstructed in relational terms, but does not always develop the relational aspects sufficiently … Indigenous institutions and juridical practices may be maintained and promoted, subject to internationally recognized human rights standards, but the relation of these institutions and practices to state institutions, particularly the judicial system, is not addressed explicitly. The Draft would require states to include the rights recognized in the Declaration in national legislation ‘in such a manner that indigenous peoples can avail themselves of such rights in practice’, but the role of state institutions, especially courts and administrative agencies, is not addressed systematically. The Draft alludes to the capacities and powers of states throughout. States are required, for instance, to ‘take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands and territories of indigenous peoples’, a formulation that deliberately did not provide for indigenous consent to receipt of such materials.” B. Kingsbury, “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law, New York University Journal of International Law and Policies, vol. 34 (2001), 22. 225-226.