For over a month since the middle of June, the indigenous Pala’wans in Brooke’s Point had been attending a marathon of meetings with authorities and representatives of mining firms that want to dig up nickel from their ancestral land. The schedule was so hectic it no longer fit the white board in their borrowed office located at the foot of the majestic Mt. Mantalingahan.
The gatherings, formally called the Community Consultative Assembly (CCA), needed to be done thrice for each of the six villages whose tribe members are being consulted for the activities of two of the country’s biggest mining companies in the mineral-rich town of over 70,000 people:
- operations of Ipilan Nickel Corp. (INC)
- exploration activities of MacroAsia Mining Corp. (MMC)
The CCAs are supposed to offer space for the indigenous community to understand the planned operations so they may be able to decide whether they would give their Free, Prior and Informed Consent (FPIC) to the mine.
But more than a month into the meetings, tribe leaders, elders, women leaders, and youth members of the Pala’wan tribe want the CCAs discontinued. They accuse the National Commission on Indigenous Peoples (NCIP) of failing to protect and promote the interest and well-being of the IPs because the commission itself allegedly could not explain the terms for the activities it wants the IPs to consent to.
“Kung hindi ninyo masagot [ang aming mga tanong], ano pa ‘yung sistema na may NCIP pa dahil hindi namin maramdaman na kami’y may masandalan gaya ng IPRA law (If you can’t answer our questions, then what is the point of having an NCIP when we don’t feel that we can rely on something like the IPRA law),” said Nelson Somra, a panglima or a tribe leader.
FPIC guidelines, the Pala’wans claimed, were also disregarded, placing them at a disadvantage against the mines.
Nearly all the six barangays have gone past the second CCA, which means the IP members are already building consensus without knowing what exactly they are consenting to. In the second CCA for Brgy. Ipilan for instance, NCIP instructed the IP members to vote by going up the stage. Even though this is against tribe practice, a total of 256 IP members appeared to have voted “yes” in this manner while only 217 voted “no.”
"Inaaraw-araw nila kami," a Pala'wan said of the meetings that are held thrice for each of the six villages whose tribe members are being consulted for the operations of Ipilan Nickel Corp. and MacroAsia Mining Corp.
No clear agenda during consultations
Ipilan Nickel Corp.'s (INC) specific mine concession was a major point of contention. When one of the second CCAs was held on July 15, the IPs could not understand whether the FPIC process was for the ongoing and reinstated operations of the mine or for its supposed renewal for another 25 years (from 2025 to 2050).
A May 20, 2022 work order issued by NCIP to the FPIC Team Leader to conduct the FPIC activities only referred to INC’s application related to its existing Mineral Production Sharing Agreement (MPSA) No. 017-93-IV. It did not mention any renewal, although a video obtained by the PCIJ from one of the CCAs shows a mine representative saying the FPIC process is for the renewal of the concession.
Members of the indigenous group were disappointed that the NCIP could not clarify these matters early on when legal issues still hound INC’s existing operations. They were afraid that the confusion was deliberate to push them to give their consent.
To Somra and his group, before INC is allowed to renew its concession, it needs to be held accountable first for failing to secure their consent for its ongoing operations.
Romeo Melnocan, a panglima from Brgy. Barong-Barong, said the CCAs should be stopped because if it isn’t clear with the NCIP, then it would not be clear for the tribe as well.
“Huwag muna sana ipagpatuloy ng NCIP itong pinapadaloy nila na FPIC. Ano ba talaga ang proseso ng FPIC team? ‘Yung ongoing ba o yung renewal? ‘Yun ang tanong namin sa kanila. Hindi malinaw sa atin. Hindi rin malinaw sa kanila (We want for the NCIP to stop the FPIC in the meantime. What is the process of the FPIC team really? Is it the ongoing or the renewal? That is our question to them. It is not clear to us. It is also not clear to them),” he said.
Environmental lawyer Grizelda Mayo-Anda, who attended two CCAs (Brgy. Barong-Barong and Brgy. Aribungos), said there was indeed no clarity nor certainty from the NCIP about the matter. Mayo-Anda is the executive director of the nongovernmental organization Environmental Legal Assistance Center (ELAC).
PCIJ reached out to NCIP’s Central Office as well as its regional officers through Mimaropa Regional Director Marie Grace T. Pascua, Palawan Provincial Director Jansen Jontilla, and Field Officer Ricardo Sanga. We sent letters of request to the officials on July 14 and a follow-up on July 15. We have not received a response as of this writing.
PCIJ also reached out to Global Ferronickel Holdings Inc., INC’s mother company, and also to MMC to clarify matters. We have yet to receive a response from both companies as of this writing.
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The northern towns of Palawan are known for its beautiful beaches. The southern part is host to mines operating on ancestral land and natural forests. Tenement map source: Mines and Geosciences Bureau
INC’s controversial mine
Brooke’s Point is one of several towns in southern Palawan that are hosts to mines operating on ancestral land, protected areas, and natural forests. With the Duterte administration lifting the moratorium on new mining agreements and the ban on open-pit mining in 2021, residents said they worry about their lives and source of livelihood which are very much tied to land and the forests.
Somra and Melnocan said they know too well what happened in other towns and would not want the same to continue happening in Brooke’s Point.
In 2012, in neighboring Narra town, the river was inundated by mine waste after water spilled from a silt pond. In Bataraza, another southern Palawan town, residents now stay away from waterways linked to a nickel mine because of the presence of cancer-causing metals.
Check out PCIJ's Losing Paradise series.
The Pala’wans interviewed by PCIJ said they feel like they are going up against a wall and have limited means of redress amid mining’s threat to their lives and livelihood.
In 2021, the Office of the Ombudsman ruled in favor of INC and suspended former mayor Jean Feliciano for shutting down the company’s operations, an action based on his constituent's complaints. It also followed a Department of Environment and Natural Resources (DENR) case against INC for illegal logging. In April 2017, DENR’s survey team found that the firm cut trees in an area not covered by its permit.
In December 2016, DENR, under then Secretary Regina Lopez, cancelled INC’s Environmental Compliance Certificate (ECC) because the firm failed to implement its project within five years from the issuance of the certificate. Cutting trees even within INC’s concession area was illegal because they did so with an expired ECC, according to ELAC.
INC sought redress from the Ombudsman, claiming that the former mayor abused her authority, and that it had the legal right to cut trees on its concession.
Apart from the Ombudsman win, the company’s ECC was reinstated in June 2020. The DENR also clarified that since the company’s mining agreement was amended in 2000, its expiration date was pushed further to 2025 instead of 2018.
Feliciano ran for vice mayor and won in the May 2022 elections.
Former Brooke's Point Mayor Jean Feliciano was suspended by the Office of the Ombusdman for shutting down the operations of an erring mine. Photograph: Kimberly dela Cruz (Palawan, October 2021)
Past FPIC process stalled
Beyond this violation, the IP community complained that INC does not have a Certification Precondition (CP) as required by Section 59 of Republic Act No. 8371 or the Indigenous Peoples’ Rights Act of 1997 (IPRA).
Under the law, no concession, license, lease, or agreement concerning ancestral lands shall be issued by any government agency without a CP from the NCIP. The CP should state that FPIC has been obtained from the concerned IPs.
Because no CP was issued, INC has no memorandum of agreement with the IP group concerned, meaning there is no benefit-sharing, royalty management, or development projects to speak of.
INC argued, however, that NCIP had declared that its MPSA predates the passage of the IPRA. In a letter dated March 31, 2006, former Ancestral Domains Office (ADO) Director Myrna Caoagas said that INC (which took over Celestial Nickel Mining Exploration Corp.’s [CNMEC] mine concession) is exempted from securing a CP because the MPSA was awarded to CNMEC on Aug. 5, 1993, more than three years prior to the effectivity of the IPRA in November 1997. (Read a copy of ADO's 2006 letter.)
INC has an operating agreement with CNMEC, which holds MPSA No. 017-93-IV, comprising 2,835 hectares across four barangays in Brooke’s Point. According to a Global Ferronickel 2018 document, the area straddles the Mt. Mantalingahan-Pulot Range, which had been declared a protected landscape in 2009 and is nominated as a UNESCO World Heritage Site for having rich, diverse, and endemic flora and fauna. (Mt. Mantalingahan was declared a protected area after the grant of the MPSA area.)
Mayo-Anda told PCIJ that the NCIP national or regional offices should have issued a categorical clarification on this concern.
“With due respect to deceased ADO Myrna Caoagas, that is not correct because the actual operations started in 2017 and are ongoing and there are and will be impacts on the IPs.
“Such issuance is prejudicial to IPs’ rights and interests and contravenes the IPRA law,” Mayo-Anda said.
On May 24, 2022, a memo signed by ADO Director Cesar Ortega stated that the NCIP needs to proceed with the FPIC process for INC because the MPSA was amended in 2000 (or after the IPRA), issued to INC from CNMEC, and extended from 2018 to 2025. (Read a copy of the NCIP 2022 memo.)
Ortega added that the fact that CNMEC itself filed a CP application and went through the FPIC process (although incomplete) was an admission that the FPIC was necessary. INC likewise filed its CP application in 2017 but the FPIC process was not completed.
In a letter to NCIP Mimaropa dated June 10, 2022, Global Ferronickel President Dante Bravo maintains that since the MPSA pre-dated the IPRA, all major components of INC’s project shall not be affected by the requirement of the IPRA. However, he also said that CNMEC voluntarily went through the FPIC process in 2006 “to maintain communal harmony and recognize the rights of the concerned groups.”
The 2006 process, however, failed to produce a CP, similar to the result of INC’s CP application in 2017.
“Based on these events, it is evident that both CNMEC and INC have complied with the law to achieve the purposes of the consultation process. Nothing in the IPRA or any law prohibits a mining company from continuing to meaningfully engage the indigenous peoples’ groups despite being exempted from a CP,” Bravo said.
The mining company sent the letter in response to an NCIP validation report on INC’s “construction activities within the alleged ancestral domain of the Pala’wans.” (Read a copy of Global Ferronickel’s 2022 letter.)
FPIC process full of irregularities
The IP members are also attending the CCAs for the FPIC of MacroAsia Mining Corp. (MMC) of the Lucio Tan Group. (MMC holds two MPSAs in Brooke’s Point, totaling 1,523 hectares.)
According to a 2021 ELAC briefer, the Palawan Council for Sustainable Development Staff found that more than 800 hectares of MMC’s MPSA area fall within areas classified as core and restricted use zones while over 430 hectares of the area to be mined comprise primary or old growth forests. The area also covers watersheds and critical habitats for threatened species.
Despite its own staff evaluation, the Palawan Council for Sustainable Development (PCSD) issued a Strategic Environment Plan clearance to MMC in 2010, ELAC said.
IP members say the CCAs being conducted for MMC are generally better because unlike INC the company has yet to operate. But the IP group has also observed irregularities on how the NCIP is conducting the FPIC process for both INC and MMC.
Nolsita Siyang, who represents women in Brgy. Aribungos, said MacroAsia could not provide them with details on how its planned operations will affect their community.
“Hindi maituro ilang ilog, ilang bahayan, ilang tao ang maapektuhan (They couldn’t tell us how many rivers, households, and people would be affected),” said Siyang.
Maica Saar, a Pala’wan youth, said the group asked for a study from MMC but the company told them to file a request first. She said the group found this ridiculous given that MMC is seeking their consent.
Saar is among the active youth members of the Pala’wan tribe observing the CCAs for over a month. Well-versed with the FPIC guidelines, they have witnessed NCIP’s failure to abide by the rules, such as their lack of legitimate IP representatives and independent experts who can help them understand the impact of the planned operations.
Eframil Landuan, 22, of Brgy. Ipilan also said that members who are critical of the mines are not given the chance to speak. He alleged he was even called “mangmang” and “bobo” when he tried to raise a point.
Members of the Pala'wan tribe in Brooke's Point have been attending a series of Community Consultative Assemblies for two mines seeking their consent to mine their ancestral land. Source: Pala'wan member
Saar added that what the group needs is an unbiased presentation because they only hear the side of the proponent.
According to the FPIC guidelines, the NCIP is required to invite the appropriate independent experts, if available, to give their opinions on any aspect of the project. These experts are “expected to give an objective information or opinion that will help the ICCs/IPs to reach a sensible, intelligent and well-informed decision.”
Tribe leader Romeo Melnocan cannot accept the fact that their group has been divided because of mining and how NCIP has been complicit in all this.
He said, “Ang kanilang pagpapadaloy ay panig sa pro-mining. ‘Yung batas ng katutubo base sa IPRA ay hindi nila nasusunod – ukol sa consensus. Gusto ng NCIP ang magbotohan or magpilahan. Hindi naman po namin kaugalian iyon (The way they are facilitating [the process] is pro-mining. The rules of the tribe based on the IPRA are not followed – related to consensus. What NCIP wants is to vote or to queue up. That’s not the way we do things.)”
According to the FPIC guidelines, IPs shall consult among themselves, “employing their own traditional consensus-building processes, to further understand and discern the merits/advantages and demerits/disadvantages of the proposal in order to intelligently arrive at a consensus.” NCIP representatives are only supposed to document the proceedings.
Melnocan says NCIP representatives participate and have them raise their hands or have them queue up in two lines to choose and cast their vote.
“Ang kaugalian po namin ay consensus. Hangga’t may tumututol sa proyekto ay huwag muna ipagpatuloy. Ang problema ay NCIP ang mismong nang-gi-giit sa katutubo. Parang pine-pressure kami (Our practice is consensus. We don’t want to continue if someone is against the project. The problem is it’s the NCIP that’s pushing the indigenous peoples. It’s as if they are pressuring us.)” he said.
Urgent decision
The third and final set of Community Consultative Assembly is expected to be completed this month. If the consensus is not favorable, a Resolution of Non-consent will be prepared, signed and released.
If the decision or consensus is favorable, a Decision meeting will be convened wherein the council of elders and leaders will formally proclaim their decision and the parties shall proceed to negotiate and finalize the terms and conditions of the Memorandum of Agreement.
The IP members worry that the CCAs are conducted simply to facilitate a process that had already been decided, however.
Melnocan questions the value of the NCIP if it could not hold INC accountable for operating without their consent.
“Ano pa ang silbi ng NCIP? Walang pakinabang ang katutubo sa IPRA (What is the value of the NCIP? We don’t benefit from the IPRA),” he says. “Hindi lang nila pinunit-punit (ang batas), tinapon pa (They did not just tear the law in pieces, they even threw it away).” END
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— PCIJ