On13 May 2022, the second part of the Free, Prior and Informed Consent (FPIC) and Safeguards Learning Session was held through an online event entitled, “Cliniquing and Learning from Existing Cases on the Ground.” The second part focused on sharing existing cases on FPIC and Safeguards wherein the event became a platform for the participants and experts to discuss, analyze, and exchange strategies, meta-legal processes, and customary ways and policy advocacy.  

Twenty-five participants, representing civil society organizations as well as indigenous people and local communities’ organizations, have attended the event. All of whom were delegates from Southeast Asia, including Mekong countries.  

Dazzle Labapis, programme officer of NTFP-EP shared key takeaways from the previous session with his presentation: Highlights of FPIC 101. Labapis started from policy origins and the definition of FPIC; and, ending his presentation with the benefits of FPIC as well as its implementation challenges.  

“Consultation is done in good faith” reiterated by Labapis from the previous discussion of Edna Maguigad. “Elevating FPIC is not just statutory obligation but also a legal right,” Labapis concluded. 

The design of the Cliniquing session was to engage the participants with lessons and insights from existing cases on the ground. Where violation or non-implementation of FPIC was evident. The case studies were researched and presented by partners from the Australian National University (ANU). Isabel Schibig and James Layman are students of ANU under the program of Bachelor of Laws. The plenary discussion was opened by Schibig paying respect to the original custodians of the land.  

For the plenary session, the Cambodian case study was presented by James Layman.  

Case Study 1: The Challenge of FPIC implementation in Cambodia 

The indigenous community of Bunong suddenly faced exclusion from their traditional lands when the Forest Clearance for the Socfin’s rubber plantation began in 2008. The burial forests of Bunong community were razed. Human remains and artefacts were photographed and uncovered in the process. There was a strong lack of FPIC and little to no engagement with the community before the invasive activities were undertaken. Layman said,” There is a lack of compensation given for the displacement of indigenous communities.” 

The Bunong indigenous community was eventually supported by organizations and civil society groups. The advocacy organizations relied on the internal laws to pressure Socfin. The NGOs strategized to target Socfin in its home country. Socfin went through an investigation as guided by French-based International Federation for Human Rights. The project was found to have violated UN Global Compact and the UN Framework and Guiding Principles on Business and Human Rights, as well as OECD Guidelines. 

In 2017, the French NGO supporting the Bunong community was joined by a network of Socfin-affected communities from throughout Africa and Southeast Asia. Socfin lobbied against violation of FPIC principles at their headquarters in Europe. There has been successful compensation since then. Layman shared his observation that it is not fully adequate compensation; however, it is a step in the right direction. He said that it is a prerequisite dedication of Socfin, “Next time if they want to avoid the financial burden of providing compensation […] that they will be making a commitment to an FPIC process.”  

Case Study 2: The Threat on the Indigenous Peoples Agta of the Philippines 

In a parallel breakout session, Isabel Schibig presented a case study on Ilagan-Divilacan Road, tourism development in the Northern Sierra Madre Natural Park, Philippines. The Agta were displaced from their ancestral lands as the Northern Sierra Madre Natural Park (NSMPNP) was established. The park is a protection to the largest remaining primary tropical forest of the Philippines.  

The Agta Peoples Organization was created for the FPIC process. The Environmental Impact Statement Report states that the road construction will be a good diversion for the economic status of the hunting, fishing, or gathering activities of the IP community. However, in 2014, an Agta man voiced their challenges. “…they tell us that they will help us rise from poverty. But until now we don’t feel it. Instead, they will eventually make us leave,” as stated when rumors of tourism development became known. The construction of the Ilagan-Divilacan road started in 2016 and still continues to this year. 

The conflicting and confusing legal rules, policies and frameworks were evident at multiple levels. “[And so] the situation tends to serve the interests of the powerful,” Schibig synthesized. Currently, the continued illegal displacement of the Agta people has resulted in cultural disintegration, health degradation, and conflict. 

Case Study 3: Wilmar Group’s Alleged Oil Palm Industry in Borneo, Indonesia 

In another parallel breakout group discussion, James Layman then shared a case study in Borneo, Indonesia. The Indonesian government still does not accept the recognition of the category- Indigenous People. In 2012, the Constitution Court ruled state does not own ‘customary forests’ even if they are still part of the national forest estate. From 2002 to 2007, IFC granted a number of loans to Wilmar group. The group’s investments were not explicitly connected to oil palm but such schemes in other parts of the world are a concern of the company.  

Supporting NGOs filed complaints to the IFC Ombudsman. Wherein, the World Bank Group must apply a stronger FPIC principle when acquisition of land for oil palm is in consideration. In 2012, IFC adopted a stronger version of FPIC. There were attempts to secure compensation for the misplaced communities as the company’s membership to RSPO was under threat. 

Cliniquing the Cases 

Layman presented the collective insights of the group on analyzing the Indonesian case study. There were no elements of FPIC observed for the case. There is a complete lack of opportunity to demonstrate FPIC. For this case, the participants observed that FPIC was more of an afterthought rather than an obligation. The strategies to secure FPIC principles were met by the advocating NGOs. The participants synthesized strategies to secure FPIC principles can be drawn out form policies, within Indonesia, that binds customary communities and forests does not belong to the state. 

Schibig represented the synthesis of the group on the Northern Sierra Madre Natural Park case study. There is not enough consultation with the affected communities. And so, the community asked for support from the local institutions and organizations. In order to remedy violations of FPIC, IPLCs organized themselves to seek legal support and communication. They were voiced through advocacy protests. The participants of the learning session synthesized strategies to secure IPLCs right to FPIC. “Follow the money…look at the investment of the company [and] development banks,” Schibig reiterated from the group’s cliniquing. 

Feedback and Inputs by Experts 

Nathalie Faure, Senior Program Officer of RECOFTC, shared her inputs on the event. She said that it is important to identify who are the actors and the forces/interests present in the area, who wants to use the land. Understanding the FPIC really well is paramount on the success of securing land rights of IPLCs. Faure advised everyone on how to strategize, “Identify which laws that can support FPIC even if it’s not explicitly mentioned.”  

Ms. Faure discussed that there are ways to envisage FPIC application or violation of. One is on the ground. For instance, in specific cases where violation has happened, it is important to consider looking at remedies and look at all possible ways (investment, international instruments, national laws, contracts, advocacy, lobby e.g., World Bank…) to support communities (e.g community organisation, legal awareness, etc). Further, training or capacitating CSOs in being proactive to help IPLCs in securing their lands, discussing FPIC, provide information on the project ahead of time, and communities documenting cultural value of the land can also be helpful. Another way is at national level, such as identifying existing laws and using it creatively to support FPIC, even where FPIC is not fully recognized or implemented. Ms. Faure highlighted the need to work on legal reforms, and how other ASEAN countries can learn from the experience of the Philippines in having FPIC embedded in a national law. Though there are still some challenges in the Philippines in applying FPIC on the ground. Guidelines are important and an understanding of what is FPIC and how it can be adapted to a specific community and situation 

She also added to look into the dynamics within the community. “[Look] into the gender and inclusion of other members of the community [during] the process of FPIC, and think of how this can be done in a way which respects the community practices as well. There might be unequal power balances within the community,” Faure said. Finally, she also reiterated the importance of recognizing that FPIC process is an iterative process and it takes time. 

Edna Maguigad, Regional Researcher for CT and FPIC, followed to share her feedback. “There is a doubtful interpretation on how proponents and actors stick to FPIC,” Maguigad opened. She said that grievance mechanism is important as doubtful agreements and manipulations during FPIC process is being observed. Maguigad advised representatives and advocates of IPLCs to try to get out of formal systems that need paid lawyers and bureaucracy. “We are progressing in FPIC. How will it impact the women and children? The right [to] survival and benefit. Not only on land but also cultural loss, intangible heritage, pollution, youth, and health,” Maguigad closed. 

Feedback/reflection from the evaluation 

Participants also evaluated the event: “It [is] important to integrate capacity building of CSOs and IPLCs on the how-to of monitoring assessment of FPIC than it is to build capacity and understanding/ awareness about the concept.” Suggestions from the evaluation listed to show FPIC on a policy level and to bring more cases on the ground. 

For the recording of the session, you may watch it here: 

The Forest Governance and Tenure Rights learning session on FPIC and Safeguards is made possible with the support from the Green Livelihoods Alliance (GLA) and the Mekong Regional Land Governance (MRLG) Project.