Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Chapter 2.6: Legal Strategy from the Local to the International
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and advocacy work to get maximum impact. On that theme,
during his 2009 Manila presentation, Stuart Kirsch explained
that it was important not to rely solely on legal mechanisms,
as they can limit participation to a small number of people.
It was also important that communities should not give over
their agency to these legal processes. Rather it was necessary
to be patient—but not passive—while cases were in progress
and continue to pursue other avenues to put pressure on the
mining company. 2
Any legal strategy should think through all of the potential
reasons for judicial action. Carefully study the relevant parts
of the constitution and mining legislation, as well as the legal
framework on other land uses. One key issue is to review if the
company has made procedural mistakes in applying to mine,
as then legal action can be taken to nullify their concessions.
If that fails, seek an injunction against the mining company
and/or the government, based on a statutory or constitutional
violation. This could be over violations such as a lack of consultation
with the community, or taking property without fair
compensation. Failing that, if there are good grounds, a community
can sue the government for violation of mining legislation
or other laws, or even challenge parts of any mining
legislation that clash with the constitution or laws protecting
the rights of indigenous peoples. 3
Court cases at the national level have assisted in recognizing
the state’s duty to obtain indigenous peoples’ free, prior
and informed consent. For instance, there was a landmark
ruling in Belize in October 2007 in the case of Maya Villages
of Santa Cruz and Conejo v The Attorney General of Belize and the
Department of Environment and Natural Resources. The Supreme
Court of Belize referred to the FPIC requirements in both
the UN Declaration on the Rights of Indigenous Peoples and
Committee for the Elimination of Racial Discrimination’s
General Comment 23 on Indigenous Peoples. The Court ordered
that the state cease and abstain from any acts, including
the granting of mining permits and the issuing of regulations
concerning resource use, which impacted on the Mayan indigenous
communities “unless such acts are pursuant to their
informed consent.” In 2010 the Court reaffirmed the applica-