China-funded Chico Pump Irrigation trampling on IP rights

By SHERWIN DE VERA
www.nordis.net

BAGUIO CITY — Apart from the onerous loan agreement, other controversies continue to surface about the P4.3 billion Chico River Pump Irrigation Project (CRPIP). For this project, the first and biggest soft loan package offered by China to the Philippines, the Duterte government has trampled the principles of free and prior informed consent (FPIC) and thus the rights of indigenous peoples.

International human rights law makes it imperative for governments to uphold the principle of free and prior informed consent. FPIC is viewed by the United Nations and indigenous peoples organizations as an essential instrument of the right to self-determination. Under Philippine law, FPIC is supposed to be guaranteed by the Republic Act 8371, the Indigenous Peoples Right Act (IPRA) of 1997.

Spanning the eastern part of Kalinga to the western part of the Cagayan provinces, the China-funded pump irrigation facility will affect the Pinukpuk and Magaogao Ancestral Domains in the Kalinga municipality of Pinukpuk. Its pump house is located in Katabbogan within the domain of Pinukpuk, and the canals will traverse Pinococ within the Magaogao territory.

The Cordillera Peoples Alliance accuses the Duterte administration of the “sell-out of ancestral land and resources” and of “undermining the FPIC process” for the project.

CPA secretary general Sarah Dekdeken states that the National Irrigation Administration (NIA) has failed to respect FPIC and the guidelines that govern the process. She cites the non-disclosure of the loan agreement provisions and the start of construction activities even before the issuance of the Certification Precondition for the project by the National Commission on Indigenous Peoples (NCIP).

The CPA leader pointed out that both are “grave breaches of the policy and principles provided under the NCIP guidelines on the conduct of the FPIC.”

Status of the FPIC process

The National Irrigation Administration Region 2, the proponent of the project, applied the Certification Precondition (CP) on September 22, 2014, with the NCIP Cordillera office. CP is a “certificate issued by the NCIP…. attesting to the grant of [FPIC]… after appropriate compliance with the requirements provided in the Guidelines.”

According to the March 18, 2019 update on the FPIC process submitted by NCIP Kalinga, the proceedings officially commenced on March 31, 2017, following the issuance of the work order by the NCIP regional office. At the time the FPIC team filed the report, the affected indigenous communities had already issued their resolution of consent and signed a memorandum of agreement (MOA) with the National Irrigation Administration (NIA).

Earth-moving activities had also started in the two Kalinga domains. Photographs provided by the Cordillera Peoples Alliance showed the ongoing construction of tunnels and canals. Also erected in the site were bunkhouses for Chinese workers and other personnel.

However, official reports and statements of NCIP-CAR officials show that under the 2012 Revised Guidelines on FPIC, the process is still ongoing.

In the status report, the FPIC team headed by Atty. Catherine Apaling of NCIP Kalinga said the proponent had yet to submit the signed agreements (MOA and the disturbance compensation) between the IP communities and NIA. The team also noted that the delayed issuance of the CP is the proponent’s fault.

Regional Director Ronald Calde also said in an interview on April 29 that “at the moment there are still unsigned documents,” and they are still “waiting for most of the documents” required for the issuance of the CP.

What the guidelines say

Section 3c of the 2012 Guidelines state that “no concession, license… or other undertakings affecting ancestral domains shall be granted or renewed without going through the process laid down by the law and these Guidelines.”

During an earlier interview on the A limit hydroelectric project, Atty. Atanacio Addog of the NCIP Cordillera Legal Office gave a briefer on how the FPIC process of any project should proceed. He said the signing of an MOA between the IP community and the proponents is not the end of the FPIC process, nor is the issuance of the resolution of consent be taken as a permit to construct.

“After the MOA signing, the FPIC report will be submitted to the regional office for review… then transmit[ted] to the central office for review by the legal office and ancestral domain office,” he explained. He said that after the review, they still have to present the MOA and a report on the FPIC process undertaken to the Commission en banc for approval. The Chairman will then issue the Certification Precondition after the completion of all these reviews and proceedings.

“Until there is no CP, [there should be] no issuance of the permit for construction,” Addog stressed.

Disregard of the procedure

According to Calde, the NCIP warned the NIA that a CP could not yet be issued for the project, but the NIA proceeded with its building schedule, anyway, so as not to delay this priority project of the Duterte government.

Also, Calde said the CP issuance was “more of a formality” since the parties involved already accomplished the resolution of consent and the MOA.

However, the MOA was still not valid when the construction activities started. The NCIP en banc has yet to approved the documents, and NIA Administrator Ricardo Visaya signed these only in July 2018.

The FPIC team status report also revealed that despite the prohibition of activities within the ancestral domain while the CP was under process, NIA proceeded. The irrigation office “asked the affected landowners to sign the Individual Right of Way Permit to Enter and Construct.”

“Hence, with the consent of the landowners affected, [the] NIA started its earth-moving activities,” the report said.

Taking it lightly, blaming it slightly

Asked if he considered the case a “dangerous precedent” for the FPIC process, Calde answered in the affirmative. Nonetheless, he seemed contented with slapping NIA on the wrist and okay with applying double standards.

“It is the government. We would not have allowed it had it been a private corporation,” the NCIP director said.

He disclosed that the NCIP would be discussing the matter with the NIA and the indigenous communities concerned to “try to find a win-win solution.”

“We understand the side of the government [that] there is a time table including the allocation of the funds,” the NCIP-CAR chief said.

The NCIP director also implied that the communities were partly to blame for the breach in the FPIC procedure.

“Unfortunately, because of the component of development… ., the community opted to execute a resolution asking for the immediate realization of the project to proceed,” he said.

Calde added that since most of the residents had already received compensation for their properties, the community permitted construction to begin.

The question of transparency in the proceedings

Section 4g of the FPIC guidelines underscores “transparency and clarity” as a critical operational principle, mandating project proponents to “make full and accurate disclosure of information.”

However, nothing in the FPIC team stated in its report that the “proponent presented everything about the operational and environmental management plan and other information relevant to the project.” However, nothing in the document indicated that NIA-Region 2 disclosed the entirety of the loan agreement on the project.

The report said that during the second community assembly, the proponent only disclosed the “project profile, the extent, and scope, the benefits, and disadvantages, its perceived socio-cultural and environmental effects.”

During talks with provincial officials and a site visit, CPA members and delegates of the 35th Cordillera Day held in Kalinga discovered that the communities and local government officials were not aware of the provisions of the loan.

“This is not surprising because the government kept the contents of the contract secret and was only forced to disclose the provisions after the exposé of Makabayan senatorial candidate Neri Colmenares,” said CPA chair Windel Bolinget.

He asserted that the disclosure of the content of the loan contract was essential. Besides the right of the indigenous peoples to know, the provisions might also entail China’s takeover of patrimonial assets and the facility within their ancestral lands.

Dangerous precedent

It is a matter of grave concern that the NCIP has been complacent and applied double standards towards clear violations of its guidelines by the government.

The way the NCIP is handling the transgression of the NIA and the contracted Chinese company in the ancestral lands of indigenous peoples is not only detrimental but also dangerous. Left as it is now, the same violations may happen in other government-initiated projects in indigenous peoples’ territories.

Even with the Indigenous Peoples’ Rights Act of 1997, the conduct of genuine FPIC remains contentious. Turning a blind eye on procedural breaches and violations, especially coming from the government, will encourage private companies also to undermine the FPIC process.

NCIP’s subservience to the agenda of the President in relation to the CRPIP is foreboding of things to come for indigenous peoples, notably, since Congress enacted a new law, the Energy Virtual One-Stop Act, that requires the completion of the FPIC process in 105 days or shorter.

While this is not surprising since the NCIP is part of the government and under the Office of the President, it remains significant in the case of CRPIP. By not lifting a finger when it actually can issue an order to stop construction activities, the NCIP, in essence, has become a Chinese lackey by condoning the cover-up of the onerous loan. # nordis.net

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