DUE DILIGENCE PROCESS WITHIN INDIGENOUS CULTURAL COMMUNITY CONTEXT: THE PHILIPPINE EXPERIENCE

I. Philippine Context in which Mining Companies Operate The Philippines is an archipelago made up of thousands of small islands and densely populated of 277 people per square kilometer. Philippines Philippines Map

A magnet of investments in mining THE PHILIPPINES A magnet of investments in mining one of the five top countries in terms of attractive mineral potentials BUT one of the 10 worst government minerals policies in the world 319 mining agreements already issued 2600 pending applications for large-scale mining

A. Environmental Context II. Context for Corporate Impact on and Responsibility for Human Rights A. Environmental Context Rich in biodiversity and host of endemic species Vast tracts of land declared as protected areas and ancestral domains Mine tailing wastes pollution contaminated 14 major river systems Mudslides bury alive inhabitants and villages

B. Cultural and Political Context Ancestral domains are the fundamental source of life for indigenous peoples. They are the basis of their cultural and personal integrity, dignity and unique identity. Traditional leadership patterns, institutions and processes for decision-making and participation are still alive and valid in their communities.

C. Economic Context Target areas for mining are farmlands and fishing grounds Mining activities resulted to the 30%-90% decline in weekly income Jobs created by mining activities were only 0.4% of total employment Revenues collected from mining corporations are less than 1% of total government revenues.

D. Legal Context The Philippine Constitution recognizes the rights of indigenous peoples. The Indigenous Peoples Rights Act guarantees their self-determination and self-governance. This also requires their Free Prior and Informed Consent before any activity takes place within their ancestral domains Also, ILO Convention 169 and UN Declaration on the Rights of Indigenous Peoples require their Free, Prior and Informed Consent (FPIC) These national and international mechanisms are good BUT they are neither properly implemented by State authorities nor are they properly observed by corporations.

Large-scale Mining has severe impact on the civil and political rights as well as economic, social and cultural rights of indigenous peoples communities and it does not bring about wealth and development to the country as a whole either.

III. What can Due Diligence Process do to Remedy and Prevent such Negative Effects on Civil and Political Rights as well Economic, Social and Cultural Rights? The due diligence process is a good concept but is not seen to be happening in mining communities dominated by indigenous peoples in the Philippines To make the concept work, companies should consider the following recommendations:

Companies need to understand thoroughly the diverse cultures, traditions, beliefs, practices and aspirations of indigenous peoples. To do so, they need to exert more efforts to understand these and allow more time for the communities to have more consultations and build consensus from among themselves. Companies need to consider the following norms and practices of Indigenous Peoples on how they fit into the Due Diligence Process:  The Indigenous Peoples Rights on Ancestral Domain, Cultural Integrity and Right to Self-Determination and Governance guided by Customary Laws. These necessitate a series of dialogues and consultations with the indigenous communities

Participation of the Indigenous peoples in the decision-making processes should primarily be through their indigenous socio-political structures. Transparency and clarity in the conduct of free prior and informed consent (FPIC) process can ensure support from indigenous peoples. Language used should be understandable by the community. If not, conflicts will escalate. Likewise, the companies shall be transparent of their plans, projects, policies and contracts to the communities.

CHALLENGES TO SRSG AND UN MEMBER-STATES The SRSG should take up these recommendations in his next report in operationalizing the due diligence principle UN Member-States should legislate and implement policies which ensure that home and host companies observe due diligence principles

If the UN wants to lead intellectually and by setting expectations and aspirations to close the governance gaps in business and human rights, as John Ruggie rightfully stated in his report of April 2008, it should think of some mechanisms to hold corporations accountable on an international level where national means have proven to be inefficient.

Thank You!