Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Chapter 2.4: Negotiations and Engagement with Companies
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2.4.1 From an Indigenous Community
Perspective
Despite the misgivings raised above, there is definitely a
purpose in exploring and understanding good practice. As
free, prior, informed consent (FPIC) has become an established
norm, it is clear that as well as being about the right
to say no, it is also about the right to say yes. The historic
problem has been the asymmetrical power balance between
the community on one side, and companies—often backed by
governments—on the other. So if good practice is about looking
at how this power balance can be corrected—by a levelling
off in terms of cultural understanding, respect, information
and technical knowledge—then it is definitely worthwhile.
Therefore, an initial interpretation of good practice from a
community perspective is understanding how a true and fair
process of FPIC can be undertaken.
Previous experience on negotiations has not necessarily
been good. Reviewing former worst practice helps set the parameters
of what good practice can be. For instance in the
Philippines, where FPIC has been part of the law since the
Indigenous Peoples Rights Act in 1997, there have been a
mass of abuses. Without wishing to create a handbook for unscrupulous
companies, recorded examples include:
• Difficulties in indigenous peoples obtaining legal title
or rights in order to qualify for an FPIC process;
• Poor legal or company frameworks that clash with the
spirit of FPIC;
• Providing misleading or inadequate information
(especially where it is in a language that cannot be
understood);
• A lack of, or misleading, advice (even more galling
where this comes from government officials who are,
in theory, employed to support indigenous peoples);
• Division of tribal land into smaller units in order to
determine a minority who will accept a project, and/or
implementing a particularly narrow definition of who
will be impacted by a project;