Module 5 Topic 2 1

(IPRA) FPIC and Corporate Imperialism

The first reading material in this module is focused on a brief history of mining in the
Philippines, the factors that brought about the emergence of anti-mining movements, and the
little victories gained by the IPs from their activism. On the other hand, the second reading
material begins with a brief history of the Philippines, followed by an overview of relevant
Philippine legislation, particularly the IPRA and the Mining Act of 1995 (‘Mining Act’). It also
presents the case study on the B’laan opposition to the Tampakan mine, which reveals
several issues. First, claiming rights or even winning legal claims does not end the
controversy or provide claimants with control. The invocation of FPIC, whether from national
or international law, does not fully end the pressure to develop. Likewise, the efforts to
develop the project do not end opposition. Instead, when one side appears to ‘win’,
opposition becomes mobilized. Second, it reveals efforts and struggles in identifying the
B’laan as Indigenous peoples. The struggle to performatively enact the subjectivity of
Indigenous peoples by invoking traditional and essential features is apparent but becomes
complicated by violence, state law and pre-existing political movements.
After reading this module, you should be able to:
1. illustrate with example corporate imperialism in the Philippines;
2. identify and examine the enabling and constraining factors that enhance and limit
the IPs rights; and,
3. make and defend a position on large-scale mining in the ancestral domains of the
IPs.

Reading 1: Corporate imperialism in the Philippines. In Tujan, A. Jr., in Evans, G., Goodman, J., & Lansbury, N.
[Eds.], [2002]. Moving mountains: Communities confront mining & globalization. New York: Zed Books.

…, mineral production in the Philippines has been colonial in character, characterised by the
large-scale extraction of minerals for export mainly to the colonising country at dirt-cheap prices.
This chapter will seek to show how a grand effort to liberalise Philippine mining in the 1990s
was thwarted through a nationally coordinated campaign by a broad movement involving
grassroots activists, indigenous communities, Church workers, environmental activists and
others. This campaign resulted in a decline in production and the departure of many
transnational corporation (TNC) investments that had originally been attracted by the
liberalisation policy. This campaign lasted more than three years and achieved an
unprecedented victory in the Philippines against imperialist corporations mining operations.

History of Philippine Mining. Large-scale mining was instituted by foreign corporations since
the turn of the last century, prompting American colonial administrators to pass the Mining Code
of 1905 which took over tribal lands and allowed extensive corporate control over mining areas.
This pattern of exploitation was continued even after independence and took the form of neo-
colonial economic domination and exploitation mainly through the transnational mining
corporations. Thus mineral production in the Philippines has traditionally been dominated by
large mining corporations such as Benguet Consolidated, Philex Mining, Marcopper, and Atlas
Mining. Typically, these corporations trace their history to American colonial times, with strong
equity and financial linkages with transnational mineral interests in Japan, the US, Canada and
Australia. Through such corporations, the Philippines mining industry became enmeshed in a
global network of giant mining and metals corporations. Non-economic factors such as political
domination were translated into super-profits in the production of ores. Costs were held down as
corporations are able to underpay mining workers, minimise royalty payments for the non-
 Module 5 Topic 2 2

renewable resources of Third World countries, and benefit from the relative lack of
environmental controls.

In spite of a general decline from the 1980s, speculative activity in the Philippines mining
industry continued, and global production in copper, gold, silver, chromite and nickel increased
… However, depressed international metal prices combined with declining productivity (due to
outdated machinery and labour problems) resulted in an overall decline in Philippine mineral
production and export ... This decline would seem unacceptable to imperialist corporations
considering the great potential for profits from Philippine mining.

Despite its relatively small land area, the Philippines is second only to Indonesia in terms of
geological prospectivity and was second only to South Africa in gold production per square
kilometre; it is also ranked third globally in copper reserves and sixth in chromite. While the
Philippines has been a major global producer of ore, at least until the 1980s, the country has
been assessed to be producing only ten per cent of its potential. I Mineral production, especially
in gold, copper, chromite and nickel, reached its peak in the early 1980s. Gold production
peaked between 1980 and 1990.

Globalising Philippine Mining. Recognising the great potential for the mining sector to earn
foreign exchange through incoming investment and ore exports, mining was made part of a
comprehensive program of corporate globalisation implemented by former President Fidel
Ramos. In 1993 he launched 'Philippines 2000', a comprehensive economic development
program which promised to industrialise the country by promoting corporate investment and
aggressively implementing structural adjustment. This five-year program covered 1993-1998
and was premised on the Philippines' accession to the General Agreement on Trade and Tariffs
(GATT) Uruguay Round. The 'Philippines 2000' blueprint systematically liberalised finance, trade
and investment, and saw the privatisation of state utilities, social services and other assets. This
succeeded in attracting investment similar to its then-touted Asian tiger cub neighbours until the
Asian financial crisis of 1997.

In the mining sector in the 1990s, the Ramos administration sought to respond to corporate
complaints, mainly from the American, Australian and New Zealand Chambers of Commerce
and Industry, pointing to factors that hobbled corporate investment in mining. Foremost among
these factors was the constitutional prohibition on majority foreign ownership in mining
companies. Foreign investors were also wary of increased activism among environmentalists as
exemplified by the opposition to tailings disposal by Marcopper Mining, indigenous peoples as in
the case of open-pit mining by Benguet Consolidated and militant trade unionism as in the case
of Atlas Mining.

The main strategy in the Ramos blueprint for the mining sector was the enactment of a new
Mining Act of 1995. This new law was significant in permitting 100 percent foreign ownership of
mining. Operators skirting constitutional prohibitions to foreign ownership of milling companies
through Financial and Technical Assistance Agreements - FTAAs - and Exploration Permits
(EPAs). The Act also granted Mineral Agreements for Philippine majority equity corporations.

The deal was. sweetened dramatically by granting FTAA holders various rights. Similar to those
provided under the US Colonial Mining Law of 1905. Besides rights to explore and mine the ore,
the law granted foreign mining corporations water rights, timber rights and easement rights.
These corporations were also offered fiscal incentives beyond the already preferential treatment
they enjoy under the Omnibus Investment Code. Slicing-up of the Philippines like a mining pie,
 Module 5 Topic 2 3

the country was divided into meridional blocks. These wars offered on a first-come first-served
basis to mostly foreign mining corporations, reminiscent of the Spanish and American colonial
eras. The meridional block system disregards the actual activities of communities on the
surface.

The response to the Mining Act exceeded expectations. A total of 62 FTAA applications were
received by 1996, and 84 by 1998, mainly from the major global mining concerns like Rio Tinto,
Newmont, Climax, and Western Mining. In fact, corporate interest was so high that 17 of these
applications were filed before the Act was passed into law. Even before the law was passed,
President Ramos approved the FTAA applications of Arimco (Climax) in Nueva Vizcaya, North-
Central Philippines, and Western Mining Corporation straddling the former Cotabato provinces
of Mindanao, Southern Philippines.

The Mining Act is a clear example of how the current neo-liberal economic paradigm is
translated into the wholesale opening up of Third WorId natural resources to corporate
exploitation, especially by global monopoly corporations. Not only does it remove investment
controls for foreign exploitation of mineral resources, but the Act provides more privileges and
incentives over the welfare of the country's environment, its rural communities, and its
indigenous peoples.

The People's Fight. The Mining Act or Republic Act No. 7942 was signed into law on 6 March
1995 without much fanfare and opposition. As previously mentioned, the mining industry had
been on the decline and consequently most protests against mining companies had also
declined. The World Trade Organisation and other issues under the Philippines 2000 program
of the Ramos administration occupied the attention of most activist organisations.

This situation changed dramatically after the accident at the Marcopper mine in Marinduque
province, Western Philippines, an accident of unparalleled proportions in Philippine history.
Marcopper, a subsidiary company of the Canadian-based multinational, Placer Dome, had
become the largest copper 'mining operation in the country. It had already been in the public
eye after a series of environmental controversies mainly involving the release of mine tailings
directly 'into Calancan Bay. On 24 March 1996, millions of tons of mine tailings stored in its old
open-pit mine were accidentally released into the Boac and Makulapnit rivers. It took four
months before the leak was plugged. In the meantime; the four million tons of mine tailings
released had destroyed ten million hectares of agricultural lands and affected a total 126 million
hectares of land around the rivers. A twenty-six kilometre stretch of the river was declared
biologically dead five days after the accident.

The Marcopper labour union, MELU-NAMAWU, reported that the spill affected 14 villages and
initially isolated more than a thousand families, and threatened to swamp another 20 villages.
Damage was estimated to be US$700,000 worth of marine life and US$200,000 worth of
milkfish fry. Catching milkfish fry through crude nets in the shallow coastlines is a major source
of livelihood of poor fisher folk who do not own fishing boats and nets." The waste exuded
hydrogen sulphide and nitrous' oxide vapours and residents complained of cases of skin
irritation and respiratory problems, and a number of people were hospitalised after drinking
water and eating fish contaminated by the spill.

Unprecedented in scale in more than a century of large-scale mining in the country, the
Marcopper accident shocked and traumatised the Philippine nation. Previous community and
environmental battles against mining had already highlighted such risks. Furthermore, since
 Module 5 Topic 2 4

Marcopper had a long-running conflict with the Marinduque residents and the Department of
Environment and Natural Resources (DENR) over environmental issues, there were suspicions
that the tailings were intentionally released.

Beyond the issues of extent of damage and remuneration, the attention of the public readily
shifted to the newly enacted Mining Act. At the time, the IBON Foundation published an expose
on the Mining Act that pointed out the greater danger of environmental disasters from large-
scale mining as well as issues of indigenous people's rights and national patrimony' National
outrage at the Marcopper mine disaster was quickly transformed into' a nation-wide campaign
against the Mining Act, and against large-scale mining by transnational corporations in general.
The issues were taken up by many of the political forces in the Philippines, and various avenues
of protest were utilised, from the streets and pickets, to the media and the Congress.

As a result, the government was forced to delay approval of pending FTAA applications - all
except the two initially approved by Ramos. This was a significant victory, but it was not
sufficient. People's organisations wanted the Act repealed, and many wanted large-scale
corporate mining ended altogether. A sustained campaign was necessary.

In the network of the militant political organisation, Bagong Alyansang Makabayan (Bayan or New
Patriotic Alliance), the initial protests were consolidated into regional conferences which warmed up
the people's understanding and analysis of the. lssues. Action plans were drawn up and protest
coalitions created. Similar processes were implemented by some indigenous and environmental
networks and coalitions, as well as church social action networks. The following action was
taken:

In April 1996, a People's Regional Mining Conference was held in the Cordillera region, a
traditional centre of large-scale mining in the Northern Philippines. This was organised by
Bayan and the Cordillera People's Alliance, and attended by 30 delegates representing 87
grassroots organisations and coalitions. Besides rejecting of the Mining Act of 1995, the
conference resolved to resist any exploration work done by mining companies.

In September 1996, a similar conference was also convened for all the Visayas islands in
the central part of the country. This was spearheaded by the National Council of Churches
in the Philippines. Following this conference, protest actions were held in various Visayan
Islands, including a rally on Negros Island on October where more than 15,000 mobilised.

In October 1996 another conference was held, gathering various indigenous peoples in
Mindanao, Southern Philippines. This focused on the impacts of the Western Mining
Corporation (WMC) FTAA in Cotabato. A conference was also held in Nueva Vizcaya,
gathering representatives from all communities covered by Arimco’s FTAA operation.

Throughout the archipelago, grassroots and community-based organisations, environmentalists,

civic organisations, tribal communities, churches and other religious organisations started
researching the corporations that had applied for FTAA, MPSA and exploration permits in their
province or region. They launched information and education campaigns drawing on existing
publications such as the IBON Special Release and produced their own materials.

The widespread and sustained protests calling for the scrapping of the Mining Act had
immediate effects on the government. Besides the unofficial but effective freeze in the granting
of new FTAAs, a Bill was filed in Congress for the repeal of the Mining Act.
 Module 5 Topic 2 5

However, these were only temporary victories, as the WMC and Arimco FTAAs were still being
developed. It was not yet certain that the Mining Act would be repealed. As the dust settled, the
Mines and Geoservices Bureau (MGB) or the President could potentially resume awarding FT
AAs. In the meantime, numerous exploration permits and Mineral Production Sharing
Agreements (MPSAs) were being awarded as a number of foreign FTAA applicants withdrew in
favour of exploration or joint production.

Unprecedented Mobilisation. The nationally coordinated campaign against the Mining Act,
and all operations of mining corporations which was launched in 1996, continues up to the
present. This includes a sustained campaign for the repeal of the law and a freeze in the
awarding of new FTAAs through coordinated popular mobilisation. It includes protests at the
WMC and Arimco mining operations and protests against exploration activities, protests against
operations of other large-scale mining operations existing before the Mining Act or under the
MPSA .

Mining Bans. Large demonstrations were held intermittently from 1996 to 1999. In March 1998
more than five hundred representatives of indigenous peoples, church people, and farmers and
others went to Manila, travelling from Pampanga, Zambales, Aurora and other provinces in
central Luzon and Southern Tagalog regions. They demonstrated at government offices
demanding the scrapping of the Mining Act and the withdrawal of all FTAAs, MPSAs and EPAs
granted by the Ramos government.

Between 1996 and 1999, campaign caravans were used to ensure maximum participation of
activists and to take the campaign to various towns in a large island or a province. Caravans
were held in the Cordillera region, Negros Island, Panay Island and in the provinces in the far
south of Mindanao and served to dramatise the call to scrap the Mining Act and end existing
mining operations. In these caravans more than 100 vehicles moved from one town to the next,
campaigning along the way. At every stop, rallies were held which mobilised local townsfolk.

Reflecting these mobilisations, local victories against mining corporations have been quite
dramatic. In the province of Capiz in Panay Island, environmentalists and militant activists led by
the Madyaas Environment Coalition campaigned against the granting of Australian Company,
Minera Mt Isa's, application for a 80,919 hectare FTAA. The Coalition conducted sustained
'lobbying with the support of progressive members of the Capiz Provincial Board. Government
approval of MPSA applications for a joint venture created by Mt Isa, and for its initial exploration
work in Capiz, resulted in widespread protest. In response, the provincial government banned
commercial mining in the province for 15 years. This campaign was supported by research
provided by the Australian NGO, the Mineral Policy Institute.

A similar measure was passed in neighbouring Iloilo province where residents had previously
barricaded roads leading to the mines operated by Malampay Mining Company, a subsidiary of
Phelps Dodge Philippines." These provincial laws contravened the Mining Act and existing
national legislation, but effectively put a stop to exploration activities by transnational
corporations. These have never been overruled nor questioned before the Supreme Court.

A more significant achievement than local legislation banning corporate mining is the departure
of Climax Arimco and Western Mining Corporation from their mining development projects on
separate occasions in 2000. After pouring US$30 million into mining development in four years,
WMC decided to withdraw its operations in its South Cotabato FTAA in February 2000,
acknowledging social and political challenges posed by the project - the result of a
 Module 5 Topic 2 6

combination of advocacy from anti-mining activists, sustained protests from B'laan indigenous
communities and solidarity action by Australian activists.

Climax Arimco also proceeded with its mining development in spite of intense opposition from
local residents, mostly belonging to the Kankanaey, Ibaloi, Bungkalot and Ifugao tribes. Besides
petitions and rallies, the residents also undertook a people's initiative in July 1999, a referendum
that is guaranteed by the 1987 Constitution and several laws. Although an Environmental
Compliance Certificate was issued to Climax Arimco on 11 August 1999 which allowed it to
proceed with its gold/copper mining project, drilling and exploratory activities were halted and its
employees were retrenched later in July 2000.

In October 2000, the Regional Development Council rejected Climax Arimco' s operation in the
region, on the grounds that the target area was a watershed and that mining was beyond the
development priorities of the region. National economic and mining government agencies
lobbied for the reversal of the decision but a subsequent meeting on 23 February 2001 upheld
the previous decision in the midst of counter mobilisations by anti-mining organisations. In
the meantime, residents continue to press the demand to close the Climax Arimco FTAA and
the Mining Act through a series of protest actions.

Victories in Contesting Corporate Mining. The victories notched up by the Filipino people's
struggles against corporate mining can be traced to various factors, but mostly to the firm
resolve of a people who did not want a repeat of the Marcopper disaster. This brought out their
creativity in launching protests and other struggles, and by linking up strong local movements
with environmentalist movements. A rapid process of capacity building ensued among
indigenous peoples who were now confronted not only with tear of the 'new white man in
helicopters', but also the potential permanent loss of their ancestral domain to him.

The campaign against corporate mining also transformed the environmental movement, which
had been focused on environmental protection and biodiversity conservation. Through the
campaign, the issue of environmental degradation was clearly linked with neo-colonial corporate
exploitation and its direct impact on the livelihood and physical displacement of rural
communities.

This 'horizontal' networking was also strengthened with 'vertical' networking. Besides linking and
consequently developing various interest groups and issue-based organisations, networks
linked local groups with provincial and national entities. Conferences and fora provided effective
venues for creating linkages that eventually led to coordinated actions. International networks
and solidarity provided crucial support through research, increasing pressure through protests
and policy advocacy such as shareholder action in the home countries of the global
corporations.

Protests were grounded in respective constituencies, and as a result became concrete and
effective rallying points for popular consciousness raising and action. Local struggles touched
mainly on loss of rural livelihood and negative effects of environmental degradation of land, air,
river and coastal areas, and loss of ancestral domain and sacred sites. The negative
environmental impacts were interpreted in terms of the dislocation of livelihoods of upland and
lowland farmers and fisher folk.

Another important factor was that the people relied on their own militant struggle through
pickets, rallies, caravans, and barricades, and combined this with various forms of engaging the
 Module 5 Topic 2 7

government through petitions and lobbying. This created a synergy that made their militant
action even more effective. Government offices and officials. from the local level up to the
national level became targets for petitions and protest actions. Legal processes such as
issuance of clearances, official permits, hearings, legislative processes, and judicial processes
were all used to highlight the opposition in conjunction with militant protest actions. These
protests were sustained and remained viable even after three years.

As a result of the people's determination and persistence there have been concrete victories.
The national government's Mining Act has been neutralised in spite of the power and influence
of the existing and incoming global mining corporations. Taking advantage of this neutralisation,
there have been victories at the local level with the enactment of laws prohibiting corporate
mining, and the perhaps permanent delaying of the two flagship mining projects.

Finally, the Filipino people - have come out of this campaign even stronger in terms of their
resolve and capacity to fight corporate mining, and are now vigilant against all forms of
encroachment by global mining corporations. The protests have caused the continued decline of
corporate mining in the Philippines. The Philippines is no longer anywhere among the global top
mineral exporters. In 1992, Philippine ore production was considered in its lowest decline but
still held the 13th global rank in gold and 16th in copper production. By 1998, it had dropped to
20th in global gold production, 23rd in copper, and improved to 11th from 14th in nickel in 1997.

There has been stagnation and even decline in the mining industry. This decline is most
dramatic in exports and foreign investment. Instead of increasing the number of large-scale
mines as expected from the Mining Act, total mines in operation actually declined in 1998 and
1999.

This decline in the mineral ore production (as well as the continued decline of timber exports) has been
greeted with satisfaction and pride by Filipinos who know only too well the consequences of
corporate mining.

National Patrimony and Imperialist Globalisation. The nationally coordinated campaign

against corporate mining in the Philippines was sustained over several years because it was
founded on struggles that sprang from or focused on specific issues against mining. However,
the overarching theme in the Philippine struggle against corporate mining is the issue of national
patrimony which in the Philippine context defines natural resources as commonly held national
treasures entrusted to the state for safekeeping.

This concept has been taken up by the various political groups and grassroots organisations, as
well as churches and other institutions that took up the cause of the Mining Act.

With the Mining Act, the government is seen as directly destroying the Filipino people's
patrimony and betraying their trust. Their only option is to stand up and fight.

As then Bayan Secretary General, Nathaniel Santiago, stated, 'We have surrendered our
national patrimony. The Mining Act restores the economic and political colonial set-up under the
guise of liberalisatIon and globalisation. There is nothing left to do but scrap [this law] and fight [this
government)'.

It has been generally recognised by all sectors along a broad front sympathetic to the campaign
against the Mining Act, that neo-liberal globalisation is behind this renewed corporate interest
 Module 5 Topic 2 8

which has meant the opening up of an important natural resource for unbridled exploitation by
global corporations. While direct negative effects on livelihood and the environment are the
immediate concerns of the protests, these have been placed in the context of corporate power
and profits. .

Global mining corporations realise super-profits by reducing operating costs through

cheap wages for mine workers that are still below the already low decent living costs, and are
obscenely lower than wages in industrialised countries. They also reduce operating costs by
scrimping on measures necessary for reducing environmental degradation such as building and
maintaining effective tailings dams and instituting non-polluting measures for disposal of wastes.
For example, open-pit mining has become the favourite method because it reduces labour costs
and is generally cheaper - yet it is environmentally degrading.

Even more difficult to cost than environmental degradation is the loss of non-renewable
mineral resources and the impacts of mining operations on the ancestral domain of indigenous
peoples. In this respect, the issue of super-profits for imperialist mining corporations takes on a
different aspect. The overwhelming unity of indigenous peoples against the entry of mining
corporations mirrors campaigns in defense of the national patrimony of an underdeveloped
Third WorId country such as the Philippines.

The Mining Act, though unrepealed, now remains unimplementable because people
have become empowered and vigilant. Mining corporations have been constantly pressured and
forced to introduce more effective measures of waste disposal and management. Deception,
subterfuge, PR activities, harassment and even outright military intervention have all failed. to
subdue an enlightened and empowered Philippine people. Global corporations are now
wondering how attractive an investment site the Philippines is, considering the social and legal
concerns they now have to face if they enter, or if they stay. New entrants are finding that the
Philippines is not exactly heaven for global mining corporations as even exploration
activities are subjected to protests. For many people this is a significant victory in the campaign
against the continued environmental degradation of the Philippines.

The problem of mine tailings disposal remains unsolved, partly because of technical
difficulties, especially with the volume of tailings produced by open-pit mining. But this lingering
problem is also due to the lack of commitment from profit-conscious corporate mining with the
collusion of government. In the face of this situation, many people would rather end corporate
mining altogether, even at least temporarily, until such time that the environmental issues are
resolved convincingly.

For many people, this campaign is a significant victory for democracy, especially for the
economic and political rights of the marginalised rural sectors such as the small peasants, fisher
folk and indigenous peoples whose subsistence agriculture is dependent on the wellbeing of the
environment. As Joan Carling, chairperson of the Cordillera People's Alliance declared, 'The
victory of the Cordillera people against Climax Arimco, as well as the victory of the "Iumads"
or Aborigines of Mindanao against Western Mining Corporation, is a significant victory in our
people's struggle for self-determination, for our ancestral domain, for democracy in our country,
and for our very existence.

For many people, this is also a significant victory for national patrimony and sovereignty
against a subservient Philippine government and against imperialist mining corporations. It is a
victory in the national struggle against foreign domination, a victory founded on the people's
 Module 5 Topic 2 9

assertion of their sovereignty. Putting the Philippines outside the global map of top mineral
producers is a significant victory of the Filipino people's struggle against imperialism in the form
of the global mining corporations.

What the Philippines has lost by way of new corporate investment and foreign currency
earnings from mineral exports is insignificant compared to what the country has gained. The
Filipino people have preserved their natural resources and national patrimony, protected their
environment from extreme degradation, secured their people's livelihood from irreparable
damage, prevented the genocide of its indigenous communities, and achieved national and
democratic power.

Reading 2: FPIC as national legislation: The Philippines, the B’laan and the Tampakan Mine.
In Stephen Young, S. (2020). Indigenous Peoples, Consent and Rights: Troubling Subjects . NY: Routledge.

Introduction
This … case study provides information on agreement-making with the B’laan both pre- and
post-FPIC. It further establishes that when it appeared that the IPRA failed to protect the B’laan,
the discourse of Indigenous peoples and international law, which was becoming far more
established, began influencing the project and those who were contesting it.
The extent of problems that arise in this case study is not common to all countries.
Nonetheless, to the extent that any state adopts FPIC, it reveals some challenges that a state
will have to avoid. Other states have adopted FPIC standards more recently. However, case
studies from the Philippines are valuable because it has the longest operating FPIC standard in
national law and, consequently, it has attracted the most scholarly attention. Scholars and
human rights advocates have upheld the Philippines’ FPIC legislation as a ‘high water mark’,
while simultaneously lamenting that it fails to work as it should. That FPIC fails to operate as it
should is an enduring problem tied to the issues surrounding the implementation or
operationalization of FPIC. While there are many different developments in the Philippines that
impact and involve autochthonous communities qua Indigenous peoples, the Tampakan mine
provides a historical vantage point from which to examine what consultation looks like before
the IPRA’s FPIC provision, what it looks like after, and how struggles changed when
participants invoke discourse on Indigenous peoples and international law.

A brief history of the Philippines

There are six basic periods discussed here: the pre-occidental contact era (before 1521),
Spanish colonialism (1534–1898), American colonialism (1901–41), national development and
independence (1945–64), authoritarian regime (1965–85), and, lastly, the era that Alvin Camba calls
the neoliberal, capitalist era (1986 to the present).
Before Magellan ‘discovered’ and laid claim to several islands that would become identified
as the Philippines, the people who lived there had their own laws and extensive trade networks
with the Muslim Malay Empire and with the Chinese. By the time the Spanish arrived, the
islands were organized as village states, later called barangays (a Hispanicised version of balangay, the
Malay term for ‘sailboat’). Each barangay was ruled by a datu, a patrilineal-inherited position, who
promulgated the oral and written laws of that territory. The earliest written laws, from around
1250, regulated trials for establishing guilt or non-guilt as well as labor and family issues.
In 1521, Ferdinand Magellan, sailing on behalf of the Spanish, ‘discovered’ the territories
that would become the Philippines and claimed them as a Spanish colony. Magellan baptized a
local datu, Saripada Humabon, assuring him that ‘he would more easily conquer his enemies’.
Through Catholic baptism,
 Module 5 Topic 2 10

Humabon re-signified himself and became identified as Don Carlos. Magellan reported that
‘some of the chiefs did not wish to obey him’, to which he responded ‘that, unless they obeyed
[Don Carlos as their new king, Magellan] would have them killed and would give their
possessions to the king’. Thus began Magellan’s conquest, which he carried out through
Catholic conversion or more violent acts. Subsequent Spaniards continued in Magellan’s wake.
The Spanish initially found some active gold mining, but initially only in quanties that
questioned the value of colonization. In 1559, Ruy López de Villalobos named the Samar and
Leyte islands Islas Filipinas after Philip II of Spain, a name that spread as the Spanish
consolidated power. By the late 16th century, the Spanish reported that there was a settlement
known as ‘Bilan’ and a ‘river with gold mines’. From the 16th through the 19th centuries, the
Spanish mined gold, copper, iron and coal. In 1846, the Colonial Superior Civil Government
introduced the Regalian doctrine, which claimed that all mineral wealth belonged to the state.
Spanish colonization lasted until the Spanish-American war in 1898 when the Spanish ceded
and sold the Philippines to the United States.
During the US colonization of the Philippines, American lawyers, anthropologists and
miners took an interest in the islands. In 1913, anthropologist Fay Cooper Cole published The
Wild Tribes of Davao District, Mindanao, which detailed the lives of the ‘Bila-an’. Cole wrote that
the Bila-an ‘are almost unknown to history, for aside from two or three short accounts, based
mostly on hearsay, we find no mention of them’. John Smith’s more recent account explains the
Filipino terminology for categorizing autochthonous communities:
The people of the Philippine archipelago may be categorized as those who were colonized
[by the Spanish] and those who were not … Those who were not colonized can be further
sub-divided into those who resisted subjugation, and those who evaded contact with the
Spaniards … The second sub-group comprises eighteen ethnolinguistic groups collectively
known as ‘Lumads’, a Cebuano word meaning indigenous. B’laans are one of these Lumad
groups.
The International Working Group for Indigenous Affairs, an international NGO, identifies ‘[t]he
indigenous groups in the northern mountains of Luzon … as Igorot while the groups on the
southern island of Mindanao are collectively called Lumad’. Signifying someone as Lumad or
Igorot does not automatically make them Indigenous peoples. Indeed, some Lumads have
objected to being identified as ‘Indigenous peoples’. The Lumad group known as the B’laan is
partially comprised of current-day individuals and communities who oppose the Tampakan
mine, …
It was during the American colonization of the Philippines that a legal native title regime
formed. Doyle claims:
The IPRA finds its roots in the 1909 Cariño vs. [the Philippine] Insular Government, ruling
of the U.S. Supreme Court which recognised indigenous peoples’ native title affirming that
their lands were their private property by virtue of ‘native custom and long association’.
However, despite this landmark ruling, public land laws continued to classify indigenous
peoples as squatters in their own lands and legitimise large scale expropriation of their
territories for logging, mining and dam construction.
As a ‘landmark ruling’ that ‘legitimise[d] large scale expropriation’ and failed to protect
‘indigenous peoples’, Cariño is an inauspicious foundation for FPIC or IPRA. The plaintiff, ‘an
Igorot of the Province of Benguet’, claimed that ‘as far back as the findings go, his ancestors
had held the land as owners’. His father cultivated and farmed the land, and the Igorot
community recognized him and his ancestors as owners, despite not possessing formal title.
The judgment’s author, Justice Holmes, never mentions ‘Indigenous peoples’. He noted that the
territory ‘was inhabited by a tribe that the Solicitor General, in his argument, characterized as a
savage tribe that was never brought under the civil or military government of the Spanish
Crown’. In his analysis, Holmes explains that the colonization of the Philippines was ‘for the
benefit of the inhabitants’, unlike the colonization of the Americas by ‘white races … to occupy
 Module 5 Topic 2 11

the land’. In parsing Spanish law, Holmes found ‘pretty clearly that the natives were recognized
as owning some lands, irrespective of any royal grant. In other words, Spain did not assume to
convert all the native inhabitants of the Philippines into trespassers, or even into tenants at will’.
Essentially, Holmes upheld ‘native’ title by expanding the law of property to include those
concepts that ‘native custom and by long association … regarded as their own’. In doing so, the
US Supreme Court subjugated the Igorot plaintiff to a foreign colonial court, as well as the
Philippine state. It has been over a hundred years since the judgment, but the plaintiff’s
ancestors continue to await the decision’s enforcement. It is tempting and easy to adopt today’s
terminology of ‘Indigenous peoples’ and read it into that opinion. But doing so re-writes the
terms of that struggle in ways that elide the productive and formative aspects of that legal
contest, as well as its failings, in favor of contemporary legal projects and subjects.
When the Philippines gained independence from the United States in 1946, American
citizens gained parity rights that effectively granted them Filipino citizenship. As a result,
America’s more heavily capitalized and industrialized mining firms, combined with Japan’s thirst
for mineral imports, dominated the Philippine mining sector until the parity rights regime ended
in 1974. The end of the parity rights regime was also the beginning of Ferdinand Marcos’s
authoritarian regime.
Marcos’ election to the presidency in 1966 placed him in a position of power for the next
20 years. The Marcos regime attempted the ‘Filipinization’ of the mining industry by providing
large mining firms with ‘service contracts’. Those service contracts ‘were subsequently
denounced for being antithetical to the principle of sovereignty over natural resources, because
they allowed foreign control over the exploitation of natural resources, to the prejudice of the
Filipino nation’. In opposition to Marcos’s regime, the Communist Party of the Philippines
formed, along with its armed militia group, the New People’s Army (CPP-NPA). It sought ‘to
overthrow the Philippine government in favour of a new state led by the working class and to
expel U.S. influence from the Philippines’. It was politically active through the 1990s and
increased militarization in the 2000s.
In 1986, a series of civil protests culminated in a nonviolent revolution, called the People
Power Revolution, overthrew the Marcos regime and instituted democratic practice by passing
the 1987 Constitution. The new government sought to recover Marcos’s ill-gotten wealth by
removing and privatizing his and his supporters’ interests in mining companies. Given the large
Igorot and Lumad groups, the 1987 Constitution ‘recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and development’ by
guaranteeing the protection of their rights to ancestral lands, as well as their economic, social
and cultural wellbeing. Former Chief Justice of the Philippines Supreme Court Reynato Puno
called it a shift ‘from assimilation and integration to recognition and preservation’. It recognizes
indigenous cultural communities’ ancestral land and economic, social and cultural well being but
also declares that ‘Congress may provide for the applicability of customary laws governing
property rights or relations in determining the ownership and extent of ancestral domain’. Where
Justice Holmes’s 1909 opinion subjected that ‘natives’ and ‘savage tribes’ to the state, the 1987
Constitution subjected ‘indigenous cultural communities’ to the state while reaffirming the
Regalian doctrine. It does not mention ‘Indigenous peoples’, a term with signification in
international legal discourse.
Throughout the 1990s, the Philippine Presidents ‘embraced sweeping liberal economic
reforms as a way of catching up with the country’s neighboring Asian tigers’. These ‘liberal
economic reforms’ included entering into multilateral investment treaties, privatizing public
services, and adopting the 1995 Mining Act. Two years later, it passed IPRA. More detailed
analyses of the Mining Act and IPRA are necessary in order to analyze the B’laan opposition to
the Tampakan mine.
 Module 5 Topic 2 12

The Mining Act and the IPRA

The Mining Act permits the state to enter into agreements with natural resource
developers. Although the 1997 IPRA, …, has been viewed as the first instantiation of
Indigenous consent and control over natural resources in national legislation, the 1995 Mining
Act declares that ‘no ancestral land shall be opened for mining operations without the prior
consent of the indigenous cultural community concerned’. Apparently, it allows the community
to refuse an agreement. However, the Mining Act reveals an ambivalence about consent,
especially considering that the section granting a right of consent is entitled, ‘Opening of
Ancestral Lands for Mining Operations’. The IPRA and its regulations bolster indigenous cultural
community consent, even though it ‘has not been clearly established how the IPRA is to be
weighed against the Mining Act’. As much as scholars have criticized the Mining Act for
conflicting with the IPRA, the Philippines demonstrates how states can adopt national
legalization for FPIC while embracing countervailing laws, interests and interpretations.
The 1997 IPRA was modelled on a draft of UNDRIP and ILO Convention No 169. In
adopting the IPRA, those previously regulated as indigenous cultural communities were
amalgamated with the international legal terminology of Indigenous peoples. Hence, it
recognizes ‘indigenous cultural communities/ indigenous peoples (ICCs/IPs)’. Senator Flavier
proposed the IPRA Bill to protect ICCs/IPs, saying that ‘[t]heir survival depends on securing or
acquiring land rights, asserting their rights to it; and depending on it. Otherwise, IPs shall cease
to exist as distinct peoples’. The proposed Bill embraced two legal principles: ‘(1) the concept of
native title [as recognized in Cariño] and (2) the principle of parens patriae’. Given this
paternalism, the IPRA subjects all ICCs/IPs to the state and grants them rights for their own
protection.
Due to its protections for ICCs/IPs and its FPIC provision, some scholars view the IPRA as
internationally significant landmark legislation, even as they lament its limitations or
implementations. In 2006, state level regulations restricted its application, which were partially
removed by the IPRA’s 2012 FPIC Guidelines. The Guidelines restructured the agencies
involved in the interpretation and enforcement of the law and sought to ‘[e]nsure genuine
exercise by Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) of their right to Free
and Prior Informed Consent (FPIC)’. Although the Guidelines were seen as a beneficial step for
CCs/IPs, Executive Order 79 was promulgated almost simultaneously. It sought to increase
mining revenue and foreign direct investment in natural resources.
Several specific IPRA provisions are important to acknowledge. The IPRA provides
ICCs/IPs with substantive property rights as well as procedural safe guards for protecting those
rights, such as FPIC. It defines FPIC as:
The consensus of all members of the ICCs/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.
The IPRA also provides ICCs/IPs with the ability to self-delineate ancestral lands and
obtain formal title from the government. However, the government retains the power to title,
identify and demarcate those lands through the National Commission on Indigenous Peoples
(NCIP). Seven of the eight NCIP seats are held by Indigenous Commissioners, which are
supposed to mitigate concerns of bias or capture because. Each member is appointed to the
NCIP by the President from a list compiled by ICCs/IPs, to support ICC/IP methods of
delineation, demarcation and titling. The NCIP is tasked with assisting consent negotiations and
ensuring that mine royalties are dedicated to ICCs/IPs for development, social services or
infrastructure projects. FPIC is required for the exploration, development and use of natural
resources, as well as for other purposes, such as relocation, research and bioprospecting. To
support the NCIP in achieving these aims – … – the 2012 Guidelines created an FPIC Team,
 Module 5 Topic 2 13

who have knowledge of the peoples and provinces to assist and oversee the validity of the
processes.
Although the IPRA is legislation that seeks to support ICCs/IPs, it has attracted criticism.
Jose Molintas argues that the legalization of property rights discourages tribal unity by pairing
parcels with specifically identifiable individuals, families or tribes, and that it acts as a means of
solidifying the state as the sole dispenser of legal title. Others have criticized the NCIP as
manipulating FPIC and titling processes in favor of companies and the government. Augusto
Gatmaytan has argued that IPRA structures the ICCs/IPs as subjects of the state, and that the
state selects members comprising the NCIP to benefit the state, which functions to legitimate
the IPRA to ICCs/IPs. Although the IPRA contains robust processes for titling land and FPIC,
the problems it creates are challenges every state that adopts FPIC into national legislation
must address. The following case study examines those problems and criticisms.

The Tampakan Copper-Gold Project v the B’laan

The area of Tampakan, where the mine would be located if developed, is on the
southernmost Philippine island of Mindanao. In 1998, the International Council on Metals and
the Environment (ICME) used the Tampakan mine as one of five case studies to demonstrate
how ‘mining companies have established mutually beneficial relationships with Indigenous
communities’. Within fifteen years of that statement, the mine would become the subject of
human rights impact assessments, academic publications and numerous media reports claiming
that the company is complicit with human rights abuses, extra-judicial killings and funding
paramilitary activities. Today, the developers are not currently planning to develop the mine, but
remain involved in the community…
The early years. Western Mining Corporation (‘Western’) began exploring the Tampakan
region in 1991. It confirmed the viability of subsurface mineral deposits in 1993. Western then
entered into a Financial and Technical Assistance Agreement (FTAA) – an agreement to mine
in exchange for foreign investment – with the President of the Philippines. Western’s FTAA
overlapped three provinces in Mindanao and, hence, required agreement-making with those
provinces (South Cotabato, Sultan Kudarat and Davao del Sur), the municipalities (Tampakan,
Columbio and Kiblawan), five barangay councils and leaders of the B’laan communities. These
agreements took place before the IPRA’s enactment.
In 1998, the year after the IPRA came into force, Stephen Davis published an article on
agreement-making between Western and B’laan communities. As a geographer for Western,
Davis’s article was an early and, in retrospect, overly congratulatory view. Davis wrote that the
corporation entered into Heads of Agreement with the traditional B’laan leaders, called fulong or
bong fulong. Those agreements were then superseded by more formal instruments, called
Principal Agreements (PAs). Davis described how the PAs mirrored the two-tiered traditional
B’laan agreement-making: the first level was a kasfaia, which binds two people in agreement,
and the second is a diandi, a public blood compact where breach is punishable by death. Davis
noted that the B’laan had not been relocated and that if ‘mineral development proceeds, then
relocation would need to be discussed with a small number of people potentially affected.
However, the informed consent of the affected people and fair compensation’ would be
required.
Davis also recognized that there would also be opposition to the mine, which he thought
would primarily stem from environmental groups, which believed that the ‘Bla’an stand to bear
the brunt of [Western’s] activities’, and local communities that were not poised to benefit from
the project. He thought that Western’s ability to work with the local B’laan community provided a
foundation for the development project, which had ‘angered a number of advocacy groups who
have found it hard to find fertile grounds to criticize [Western]’. He described that the agreement
process allowed the B’laan communities and Western ‘to understand more about each other
and provided a basis on which a mutual understanding and a positive working relationship could
 Module 5 Topic 2 14

grow’. With Western’s assistance, potentially affected B’laan secured formal title to several
areas. Davis quoted Limukum Cafifion, who said, ‘We, the leaders of Bong Mal, need help to
explain our situation to the government … We do not have any advocates. We would like
[Western] to stay in our area and be our advocate. Talk to the government, and help us’. Given the
putatively extensive consultations and complex agreement formation processes, the ICME
viewed Western’s Tampakan mine as a new and promising standard for community
development and mine–community relations. The ICME also repeatedly emphasized the
difficulty of developing projects where ‘advocacy groups’ oppose mining activities.
Smith’s fieldwork and interviews on consultation and development surrounding the
Tampakan mine in 1999 and the early 2000s revealed complicated, multivalent socio-political
circumstances and growing dissatisfaction with the miners. Smith found that some provincial
Governors as well as a Mayor from a municipality had not entered into agreements with
Western, and were ‘expressing dissatisfaction over environmental safeguards’. He describes
how they questioned Western’s environmental safety, even though none could provide an
example of environmental risk. Smith tentatively explains that their environment concerns were
a ‘smokescreen for deeper political machinations’:
Considering the recent history of Mindanao, particularly the abuses of Ferdinand Marcos’
martial law regime [1972–86], the recalcitrance of some local leaders may have been a tacit
reflection of left-wing opposition to the state strategy of top-down development by means
of multi-national corporate investments in exchange for rights to land, minerals, etc.
Smith also questioned Davis’s account. Davis claimed that Western found traditional
B’laan society to be structured around a ‘single strongman’, but Smith failed to find a
‘strongman’ society even if their communities were not democratic. Where Davis claimed that
Western had entered into traditional kasfaia and diandi agreements, Smith found little evidence
that the agreements significantly differed from standard mining PAs. Smith tentatively concluded
‘that the company might be seeking B’laan customs to fit with mining practices rather than the
other way around’.
The legal challenge and international legal discourse. Beginning in 1997 and lasting
until 2004, Western faced a legal challenge from the B’laan, who acted as the lead plaintiffs for
various interested parties. The challenge would ultimately fail, but international legal discourse
on Indigenous peoples would find its way into local struggles while that litigation occurred.
When Western obtained its FTAA under the Mining Act, the Catholic Church,
environmental and social NGOs, and some B’laan opposed it. They had various reasons for
opposing the FTAA, but channeled their opposition into a constitutional challenge in La Bugal-
B’Laan Tribal Association v Ramos. As the lead plaintiffs, members of the B’laan Tribal
Association enacted subjection to the state, and in doing so sought to uphold their view of the
1987 Constitution. They argued that FTAAs perpetuated the ‘service contracts’ of the Marcos
era by giving foreign companies full control over natural resources in contravention of the
Regalian doctrine and the 1987 Constitution’s limitation on foreign interests in natural resource
exploitation.
The Supreme Court initially sided with the B’laan and the other petitioners. The
controversy, however, did not end. While the proceedings commenced, Western sold its
holdings to Sagittarius Mines, Inc (SMI), a corporation organized under Filipino law and owned by
a Filipino majority. Subsequently, in 2004, the court reversed its opinion, finding that the miner’s
foreign status was rendered moot through a valid transfer of the FTAA to a Filipino company,
which adequately protected Filipino sovereignty. Even if that appeared to end the political
controversy so that the Tampakan mine could proceed, the Court’s reversal became a lightning
rod for anti-mining activism.
Alan Tan claimed that ‘[t]op government officials, including the President and several
congressmen, senators, and department secretaries, subsequently lent their voices to the
chorus urging the Supreme Court to review its decision’. Similarly, Catholic missionary Father
 Module 5 Topic 2 15

Shay Cullen reported that the Speaker of the Congress Jose de Venecia started a political
campaign to reverse the initial decision as a ‘signal to the captains of industry … to go back to
the Philippines and take a good strong second look at our mining potential’. Later, as
international human rights NGOs invoked international legal discourse, they would cite Tan’s
and Cullen’s views.
... As emblematic of this development, in 2003, the first UN Special Rapporteur on
Indigenous Peoples Rodolfo Stavenhagen wrote:
A mining license was granted to the Western … for areas that cover the territory of the
community of B’laan … As a result of this mining operation, it was reported that the B’laan
were deprived of their right to determine their own economic, social and cultural
development and their property was disposed of. No genuine consent was given by the
indigenous peoples. They argue that their leaders were tricked by the authorities into
signing agreements which they could not fully understand and which have not benefited
them.
Stavenhagen’s account significantly differs from Davis’s provided above. When
Stavenhagen writes that ‘[n]o genuine consent was given by the indigenous peoples’, he is
obviously talking about the B’laan community. It is not so obvious that, as the first UN Special
Rapporteur on the Rights of Indigenous Peoples, he is legitimating the B’laan as Indigenous
peoples for the purposes of international legal discourse. Stavenhagen begins by describing
Western’s impact on the B’laan.
He then links the reports made on behalf of the B’laan to the language on self-
determination in common article 1 of the International Covenants, ‘the right to determine their
own economic, social and cultural development’. Then, as though writing a legal memo, he
establishes that the B’laan qua Indigenous peoples did not provide genuine consent, because
their leaders were tricked. After forming the B’laan into Indigenous peoples, he recommends
‘[t]hat the Philippine judiciary fully respect the legislative intent and spirit of IPRA and ensure
that maximum favour be accorded to indigenous peoples in resolving the issue of conflict of law
between IPRA and other national legislation such as the 1995 mining Act’. The notion of IPRA’s
‘spirit’ is important. When human rights advocates compare the IPRA (as law or in practice) to other
international instruments, the ‘spirit’ is then re-cited as the conceptual remainder that animates
claims for proper recognition of Indigenous peoples’ FPIC.
Because the IPRA was modelled on drafts of UNDRIP and ILO Convention No 169 and
regulates the B’laan as ICCs/IPs, the B’laan already appear like Indigenous peoples for
international legal purposes. If one adopts a legal model and focuses on the rights rather than
the ways in which subjects are produced in relation to the rights claim, the B’laan appear as de
facto, rather than de jure, Indigenous peoples. Thus, Stavenhagen and others can identify the
B’laan as Indigenous peoples, even though it is legal actors who form the B’laan into Indigenous
peoples by deploying international legal discourse in their identification
Following the Supreme Court’s reversal, the Tampakan mine re-commenced feasibility
studies, including an environmental impact assessment. Meanwhile, Special Rapporteur
Stavenhagen discussed the B’laan in his reports on the Philippines in 2002 and 2003, which
legitimated deployments of international legal discourse by scholars and advocates as reflecting
a natural and true account of the B’laan qua Indigenous peoples. Accordingly, human rights
advocates would propose alternative models for sustainable development to support Indigenous
peoples’ FPIC and self-determination.
In 2008, one year after the UN General Assembly’s endorsement of UNDRIP, Robert
Goodland and Clive Wicks published a series of case studies entitled Philippines: Mining or
Food? They argued that the government should promote food security and demote mining as
the largest environmental risk to food security. Although it is not obvious that the B’laan have a
role to play in food security, according to international legal discourse Indigenous peoples are
 Module 5 Topic 2 16

natural guardians of sustainable development. Hence, Goodland and Wicks argue that the
Philippines should:
necessitate that mines be developed according to climatic, geographic, and demographic
conditions. It would also require adherence to the legislative protection already in place,
respect for Indigenous Peoples’ rights and ensuring that the income generated be used to
support sustainable activities. Indigenous peoples regard large-scale mining as a direct
threat to their survival.
To support their argument, they use the Tampakan mine as one of several case studies
and treat the B’laan as, naturally, Indigenous peoples. They write that ‘[t]here are 33,000 people
in the municipality of Tampakan including the La Bugal B’laan Indigenous Peoples who used to
be hunter-gatherers and fishers. They then argue that if Indigenous peoples’ FPIC had been
followed, a more sustainable development approach towards protecting food sources would
have been followed. They note that ‘[e]xploration permits were granted in May 1995, without any
Free and Prior Informed Consent being obtained’. In a footnote, Goodland and Wicks explain
that:
Stavenhagen (2003) questions the legitimacy of the signed documents supposedly giving
consent to the project since it was signed in 1995, a month after the issuance of a mining
permit and the signing of the FTAA. The law stipulates that ‘free and prior informed
consent’ is required before granting a mining permit.
In fact, the 1995 Mining Act states that ‘[n]o ancestral land shall be opened for mining
operations without the prior consent of the indigenous cultural community concerned’. It
prohibits mining operations, not permitting, until ICCs provide consent. The retroactive and
ahistorical application of Indigenous peoples’ FPIC performatively re-cites and re-writes
international human rights to question the validity of the mine’s current or future development.
In their case studies, Goodland and Wicks cite Cullen’s report, and re-cite Stavenhagen’s
recommendation. They write that the Philippine government should ‘[e]nsure adherence with the
spirit and letter of IPRA and the UN Declaration on the Rights of Indigenous Peoples’. The re-
citation exhibits decontextual/recontextualized slippage. Where Stavenhagen wrote of the ‘intent
and spirit of the IPRA’, Goodland and Wicks re-cite the ‘spirit and letter of IPRA’, as though the
Philippines was not enforcing IPRA or UNDRIP, even if they were not applicable when the mine
was permitted in 1995. SMI responded that the publication was biased. As the first human rights
case study on the Tampakan mine, Goodland and Wicks’ publication channeled dissatisfaction
and drew attention to the rights claims of the B’laan Indigenous peoples. Their report has been
subsequently re-cited in ways that influence the discourse on the Tampakan mine
development, human rights, environmental harm and the ensuing social effects.
While international legal discourse gained traction in the Philippines, the CPP NPA
continued attempting to overthrow and subvert capitalistic endeavors. While Goodland and
Wicks were compiling research for the Philippines: Mining or Food?, the CPP-NPA attacked and
destroyed portions of SMI’s base camp. In response, local governments, police agencies and
SMI created a task force named KITACO (named for the local government units of Kiblawan, Tampakan and
Columbio); SMI hired a private security firm to protect its assets and workers; and the Philippine
Department of National Defense considered deploying soldiers to protect the project. Xstrata, a
UK–Swiss investor in the mine development, urged the government to accept responsibility but
voiced ‘serious reservations about involving the military so actively’. Similarly, Eliezer Billanes, a
local anti-mining advocate, warned against militarization noting that it ‘will result to [sic]
displacement of indigenous peoples and more human rights violations’.
Although financiers and anti-mining advocates both warned against it, militarization
increased, especially after Billanes was murdered. Local mining opponents called his death an
‘extra-judicial killing promoted by high-ranking agents of the government’ to ‘horrify the mass
activists and environmentalists’. SMI denied any connection and made reassurances that all
staff and security would be further trained on its voluntary initiatives and human rights. SMI’s
 Module 5 Topic 2 17

reassurances regarding human rights training and the invocation of its voluntary initiatives
demonstrate that it was not simply a passive target of human rights abuse allegations. Rather,
its response was representative of the way in which voluntary initiatives influence international
legal discourse by providing corporations with a means of ‘respecting’ human rights.
Increasing violence was matched by increasing human rights rhetoric. The Working Group
on Mining in the Philippines, a human rights NGO comprised of the same supporters as
Philippines: Mining or Food?, submitted a call for evidence of human rights abuses based upon
that publication to the United Kingdom’s Joint Committee on Human Rights. Although it is
unclear why a UK Joint Committee on Human Rights would have jurisdiction over matters in the
Philippines, or what actions it could take, the submission explains that the case studies ‘[a]ll
have a UK connection’. It performatively supports Indigenous peoples’ human rights assertions
and increase international scrutiny of the mine development.
Another consortium of NGOs, acting on behalf of all Philippines Indigenous Peoples,
submitted a shadow submission to CERD. It described human rights abuses and the ways in
which the Philippines’ 2006 FPIC Guidelines ‘conflict with the law’. Even though the Philippine
government enacted the 2006 Guidelines according to legal processes, the submission explains
that the law:
evolved into a highly discriminatory set of rules which impose restrictions on the time,
manner and process of FPIC which are not in conformity with the customs, laws and
traditional practices of indigenous communities. They clearly work against the spirit and
letter of the IPRA on FPIC.
Not only does this statement reflect how laws ostensibly for protection can, in time,
become viewed as ‘evolving’ into a discriminatory set of rules, it also re-cites Stavenhagen’s
language as the ‘spirit and letter of the IPRA on FPIC’. CERD affirmed the views and responded
by criticizing: extrajudicial ‘executions’, ‘disappearance and detention’, and internal
displacement due to armed conflict; the application of the Regalian doctrine and the Mining Act
as contrary to indigenous property rights of the IPRA; and other human rights violations. It also
recommended that ‘the State party verify that the current structures and guidelines/procedures
established to conduct FPIC are in accordance with the spirit and letter of IPRA’.
The re-citations of this language – ‘the spirit and letter’ – demonstrates how a phrase or
term within a citational-chain may be slightly altered over time and in mostly innocuous ways. At
first, the phrase the ‘spirit and letter’ was about the IPRA. Then it became about the IPRA and
the UNDRIP. Then it was the IPRA and FPIC. As expressed below, when advocates began to
view the IPRA unfavorably, this phrase would become the ‘spirit of FPIC’. While otherwise
harmless, the ‘spirit’ displaced the letter while contributing to the notion that FPIC, even if
initially codified in national legislation or in international human rights, has become increasingly
viewed as a right inherent to Indigenous peoples as natural subjects.
Violence and the struggle to identify subject-status. Within the community, consent
and FPIC became part of the local vernacular. A media outlet interviewed ‘B’laan leader Pilo
Capion’, who had previously worked for and supported the mine. However, Pilo changed his
mind, ‘recently siding with the Catholic Church’, when roads were constructed without ‘prior
consent’. Pilo, his brother, Daguil, and his grandfather complained that they were ‘promised the
heavens … so they gave their consent to the firm’s plans. But he claimed they were not told
about the project’s ill effects’. Media also cited Father Romeo Catedral, who said that ‘though
they gave their consent … they never understood what large scale mining was all about and
would have never allowed the mining company if they were told in the first place’. Supported by
or aligned with the Church, the Capions asserted that even if they had, at one time, provided
consent, it was not informed consent. When SMI was asked to respond, the manager for
community affairs noted growing discontent but downplayed it as ‘a tribal leadership crisis’.
Even if there were changes in tribal leadership, international legal commentators and actors
 Module 5 Topic 2 18

were scrutinizing the project and FPIC in the Philippines, which amplified and perhaps
contributed to those shifts in power.
A series of killings around the mine forced SMI to, again, delay the start of operations. In
2011, three drill operators were killed, followed by the murder of SMI’s offsite land acquisition
offer. The following year, Daguil Capion, whose discontent was mentioned above, claimed
responsibility for killing two SMI security guards. Shortly afterwards, Armed Forces of the
Philippines Brigade killed Capion’s wife Juvy and their two children. The Brigade claimed that
they were casualties from actively pursuing Capion. Witnesses asserted that Capion was
destroying evidence. Locals began referring to the murders as the ‘Capion massacre’ or the
‘Tampakan massacre’. When prosecutors acquitted the alleged murderers, Indigenous peoples
and human rights advocacy groups publicized local dissent in international legal fora. In 2013,
KITACO forces killed Kitari Capion, Daguil’s brother, and claimed that they were fired upon by
Capion’s group. Shortly afterwards, forces killed two more B’laan members, which was again
justified as pursuing Capion. Media outlets then reported that Capion had joined the CPP-NPA.
Much of the violence surrounds Daguil Capion and the Capion family. Unsurprisingly, there
were conflicting attempts to identify whom he sided with or was used by, and why. Those who
support the state and the mine emphasize his violence and view him through a legal lens as a
criminal in order to justify state violence. A local Mayor was reported to have called Daguil
Capion a ‘bandit’ and offered a reward for his capture, ‘which translates into a shoot-to-kill order
… [because] the branding of Daguil as a bandit made him and his entire family an open target’.
It was also reported that the ‘military … said Capion is a bandit who resorted to armed robbery
after he was denied work in the company’. At the most extreme, a local chapter of the Filipino
Alliance for Nationalism and Democracy claimed that he was a fugitive bandit who deployed
anti-mining rhetoric to escalate a personal quarrel with a Mayor and was being used by the
CPP-NPA to advance their agenda.153 In identifying him as a ‘bandit’ or a ‘fugitive’, these
actors attempt to subjectify Capion as an illegitimate, violent actor who cannot be tolerated in
democratic society because he is outside the law.
On the other side are those who identify Daguil Capion as a traditional B’laan elder and
leader by emphasizing his role in the B’laan community, the Capion family or the clan, rather
than as an individual. Whether knowingly or not, they seek to shape the B’laan into traditional
and essential Indigenous peoples. For instance, in a local newspaper, Raymund Villanueva
wrote:
For a fulong, a well-respected B’laan clan elder, however, Daguil is not a bandit … The
Capions initially supported SMI-Xtrata, including Daguil, who was employed by the mining
company as a community relations staff for three years starting in 2005 … [but] [t]he clan
had a falling-out with the company when it ordered the Capions to leave their land, which
SMI-Xstrata wanted to buy … [T]he Capions said they are just following and enforcing
their customary laws against violators of their ancestral domain. ‘When it comes to our
land, our laws, and not of outsiders, apply,’ the fulong said.
Villanueva demonstrates how, in the context of a claim for Indigenous peoples’ rights, the
individual is de-emphasized, while the traditional laws and identities are emphasized. When
Villanueva explains that the Capions sought to enforce their customary law, the name ‘Daguil’ is
replaced with his traditional title of ‘fulong’. Those who support Daguil Capion identify his
violence as that of a tribal resistance leader, who had declared a pangayaw (a traditional tribal war)
after it became clear that his people would be forcibly relocated from their ancestral lands.
Human rights groups have trouble with Daguil Capion’s association with the non-
democratic CPP-NPA. In their human rights impact assessment of the mine, Hamm, Schax and
Scheper report that the CPP-NPA ‘capitalized on the resentment felt primarily by indigenous
community members towards SMI to recruit new members’. They then express concerns that
Philippine military forces were legitimating their operations by listing Indigenous communities as
CPP-NPA supporters. To support the B’laan qua Indigenous peoples, they de-emphasize the
 Module 5 Topic 2 19

individual as violent and either legitimate any violence as being based on tribal law or view the
CPP-NPA as somehow using the B’laan to advance their own agenda.
Undoubtedly, the B’laan are Indigenous peoples, which is a historically contingent
international legal subjectivity, rather than a pre-legal natural subject status. Those who resist
the state or mine, such as Daguil Capion, can align with whomever they want to further their
interests. Those who resist can align with the Catholic Church, Indigenous peoples,
environmental organizations or communist militias. They can and will use whatever political
platforms are available to express their agency and opposition. They may assert human
rights and they may not. In this context, pro-mining and anti-mining actors identify and subjectify
Daguil Capion differently. The struggle for subject status is not necessarily his or performatively
enacted only by him. He might be a bandit, or an outlaw, as well as a traditional leader engaged
in a traditional war in opposition to the mine or state-backed capitalist enterprises. How others
view him and identify him may be intentional or not. However, it is clear that the different
attempts to identify him seek to subjectify him in ways that advance the identifiers projects.
In 2015, Glencore (formerly Xstrata) exited the project. The Tampakan mine may become
socially or economically viable at some point, but it is shuttered for now. SMI remains in the
community, and rumors persist that the mine may open. Although the Tampakan mine is
controversial, almost everyone agrees that FPIC did not work as it ‘should’ have.
Criticism of FPIC in the Philippines. The B’laan opposition to the Tampakan mine is one
example of FPIC in the Philippines, but it reflects the troubles that ICCs/IPs face in using FPIC,
the violence that Indigenous peoples and anti-mining advocates confront, and the ramifications
of an incredibly complex history in a post-colonial state. Many view the problem with FPIC as
failures in implementation. For instance, Rosa Cordillera A. Castillo and Fatima Alvarez-Castillo
write:
Violations of the rights of indigenous peoples continue in the age of the modern state. In
the Philippines, these violations are often linked to large-scale development projects like
dam, logging and mining in indigenous peoples’ lands. Such development projects are
accompanied by numerous cases of fraudulently obtained ‘free and prior informed
consent’ (FPIC), militarization, displacement and killing of indigenous peoples and their
advocates. These occur despite the recognition of the rights of indigenous peoples in both
the Constitution and national laws, including the right to give or withhold FPIC. The law’s
implementation leaves much to be desired.
In specifically considering the Tampakan mine, First Peoples Worldwide, an NGO
advocating for Indigenous peoples, writes:
After learning about potential benefits and downsides of the mine, community members
were initially split in their opinions; however, as the violent encounters between community
members and the company have continued, more and more B’laan villagers now oppose
the mine. Proper consultation and negotiations on the behalf of Glencore-Xstrata could
have prevented numerous deaths, injuries, protests, and project delays.
Other commentators question the Philippines’ FPIC and claim that it was implemented to
the detriment of its Indigenous peoples, instead of protecting them or providing a pathway
towards sustainable mining development. Doyle sees ‘scant evidence of indigenous peoples
benefitting from mining and numerous cases that point to the contrary’, which supports his view
that FPIC needs fixing and proper recognition. Some believe that each party (industry, government and
ICCs/IPs) uses the IPRA to advance its own personal, market-based interests, or that IPRA
creates a ‘consent for the highest bidder’ mentality among ICCs/IPs. If the formative and
productive features of law can do that, then adopting FPIC into national law might destroy what
it seeks to protect. And then there is recourse to international legal discourse, as though
Indigenous peoples are natural subjects. The National Alliance of Indigenous Peoples’
Organizations in the Philippines (Kalipunan ng mga Katutubong Mamamayan ng Pilipinas) has argued that the
IPRA is a ‘tool to deceive and appease the indigenous people’s struggles for land and self-
 Module 5 Topic 2 20

determination’. Despite the IPRA’s failure to work as advocates believe it should, many have
begun advocating for FPIC and legal recognition of Indigenous peoples’ rights in a less
‘formalistic’ or ‘bureaucratic’ interpretation, or in an altogether non-legal manner – a move away
from IPRA’s legalism. For example, Cariño argues, not that FPIC fails, but that ‘[t]he Philippine
experience demonstrates a failure to implement the “spirit” of FPIC’.
Under a view where FPIC’s implementation is problematic but FPIC itself is not, there are
several options that enable one to suggest that Indigenous peoples have control. The first is to
adopt and (re)deploy a legal model and suggest some alterations to the legal apparatus or
process to make it ‘better’:
reform the IPRA or the NCIP, adopt more operational guidelines, make mining illegal or
alter the Constitution. There are many potential legal solutions one could suggest to
actualize the hope of creating space or control for Indigenous peoples. One could also
seek a different legal form. For example, some see Indigenous peoples as having ‘no
option but to resort to direct political action, exemplified in public rallies to demonstrate
their opposition and petition signing to put pressure on government officials to act more
responsibly’. …
As encouraged here, one could also query the effectiveness of legal models and inquire
about the ways in which power precedes and produces the subject to claim rights. From a
similar position, Camba writes:
My own fieldwork shows that the FPIC process gives the leader or the council of the
indigenous peoples the freedom to choose what kind of operation to allow and under
which conditions … The law not only prefigures a liberal logic, reducing people to
individual subjects with ‘free’ choices like consumers in markets, but also violently
abstracts the historically tenuous experience of the autonomous indigenous peoples from
the ‘sin’ of Philippine nation state formation…