EXAMPLE:

MANEUVERING AROUND FPIC REQUIREMENTS FOR

THE SAN ROQUE DAM PROJECT, PHILIPPINES
(Note: The barangay , which will be frequently referred to below, is the smallest
political and administrative unit in the Philippine local government system.)
In 1994, the government of Fidel V. Ramos (President from 1992 to 1998) invoked the existence of
an energy shortage to revive the dam projects of his kinsman, deposed dictator Ferdinand E.
Marcos (President from 1965 to 1986). These included the construction of the San Roque dam
along the boundary of the Cordillera province of Benguet and the lowland province of Pangasinan.

The dam was to be 200 meters high and 1.13 kilometers wide. It was to be built on the
Agno river. The dam itself would be erected between the Pangasinan municipalities of San
Manuel and San Nicolas. But the reservoir that it would create was going to reach into the mu-
nicipality of Itogon within the province of Benguet, where two other large dams had already
been installed on the Agno during the 1950s. Sedimentation and flood studies indicated that
the silt build-up behind the San Roque megadam would meet with silt spillage from the two
older dams. All villages between San Roque and these two dams were thus threatened with
partial, if not total, inundation.
The village that constituted Barangay San Roque, would be dismantled. This was occupied by nearly
600 migrant Ilocano households. Eight villages would be drowned in the reservoir. These were
occupied by about 90 households of Kalanguya, Ibaloy and Kankanaey indigenous to Benguet, along
with about 10 households of migrant Ilocano. The members of nearly 40 more indigenous Benguet
and migrant Ilocano households frequented the vicinity of all the eight villages to cultivate
swiddens, pasture cattle, and extract gold placers from the waters and the riverbanks of the Agno.

Upstream of the reservoir, in the municipality of Itogon, about 5,000 Kalanguya, Ibaloy and
Kankanaey households were going to be affected by sedimentation and flooding. In addition to
them, over 3,000 households were going to have their livelihood activities affected by
watershed management regulations.
In 1995, immediately after Ramos announced his plan to build the San Roque dam, the leaders of
affected communities in Itogon expressed their opposition to the dam project. And in 1996, the
members of the affected communities in barangays Itogon Proper, Tinongdan, Dalupirip and
Ampucao petitioned the Office of the President to cancel the project. They successfully lobbied
local government units to support their petition. This would have stalled the project because
Philippine law required local government endorsement for any project that would generate a high
impact on the environment.

But Ramos went on a campaign to change the minds of local government officials. He com-
mitted 300 million pesos worth of development works to the various barangays and the
municipality of Itogon, and promised even more benefits to the province of Benguet. The
Governor of Benguet joined Ramos’s campaign. He got the Mayor and Municipal Council of
Itogon, as well as the Chairs of the Barangay Councils of Dalupirip and Ampucao, to reconsider
their position. But the Provincial Board of Benguet took a firm stand in support of the
communities, against the construction of the San Roque dam.
 Towards the end of October 1997, the Indigenous Peoples’ Rights Act (IPRA) became law,
and with it the stipulation that the proponents of projects affecting indigenous peoples secure
their free, prior, informed consent. The IPRA Implementing Rules and Regulations (IRR) at the
time equated consent with consensus. Even a single dissenting voice in a community could
challenge a hundred votes of consent to a project.
But Ramos had already awarded the contract for the construction and operation of the San Roque
dam earlier in the month, to a conglomerate composed of three transnational corporations, Sithe
Energies, Marubeni, and Kansai Electric. This conglomerate was to be known as the San Roque
Power Coporation (SRPC).

Ramos also had groundbreaking ceremonies held at the dam construction site although no
actual work could yet be done by the SRPC’s subcontractor for construction, another transna-
tional called Raytheon, because the occupants of the site had yet to be relocated.
The awarding of the contract and the holding of groundbreaking ceremonies sparked in-
tense protest. By the end of 1997, the opposition to the San Roque dam project was already
being transformed into an organized and militant mass movement, and from 1998 to 1999, this
movement spread throughout the Municipality of Itogon.
But the Ramos government and the succeeding government of Joseph Estrada (President
from 1998 to 2001) continued to ignore the protest. Instead of addressing it, the government
had the state-owned National Power Corporation (NPC) work with the SRPC so that they could
forcibly relocate the Ilocano occupants of the dam site and start construction.
The NPC was also to work with the newly created National Commission on Indigenous Peoples
(NCIP) on negotiating with individual heads of Benguet and Ilocano families whose households
would be dislocated from the dam’s reservoir area, so that they would accept relocation and
compensation, and their acceptance could be used as an indication of consent.

To complement government efforts, Marubeni engaged a non-governmental organization

known as Veritas (Truth) in the task of persuading affected Benguet communities to accept the
project. Veritas staff went around Itogon to tell people to “Just accept the project because it has
already commenced and you cannot stop it. But you can still make the most of the situation by
demanding fair compensation for your lands, houses, trees and other land improvements, and
asking for other benefits.”
Communities became divided between people who remained stubbornly opposed to the project
and those who were already resigned to it. While the latter signed compensation acceptance
documents, the former petitioned the NCIP to issue a cease and desist order to the San Roque dam
builders, invoking the absence of a consensus in favor of the project, as obvious from the
persistence of their protest.

The NCIP, however, was paralyzed: it could not act on the petition. Evelyn Dulnuan, the
first NCIP Chair appointed by Gloria Macapagal Arroyo (President from 2001 to the present)
had herself conducted an investigation from which she concluded that the proponents of the
San Roque dam project had failed to comply with FPIC requirements and were unlikely to ever
obtain consent to their project. But she explained to a delegation of the Itogon Inter-Barangay
Alliance (IIB-A) that “The NCIP is under the Office of the President, and the President won’t let
me do anything. She has me by the scruff of the neck.” In 2002, Dulnuan finally issued a
statement to the effect that the NCIP could not make any decision on the matter of the FPIC of
the indigenous peoples affected by the San Roque dam project because the contract for the
project had been signed before the IPRA took effect, and the law could not be applied
retroactively.
The IIB-A thus prepared to take the case to court. But preparations for the suit took the
lawyers so long that by the time the papers were ready in mid-2002, the dam had already been
completed, and water impoundment had begun.
In October, the IIB-A, through the Cordillera peasant federation APIT TAKO in which it was a
member, filed a report with the UN Special Rapporteur on indigenous peoples. Based on this, the
Special Rapporteur told the Economic and Social Council’s Commission on Human Rights (Economic
and Social Council 2003b: 19-20):

This has occurred because local mechanisms for the protection of indigenous rights have not been
effective. The indigenous communities of the municipality of Itogon tried to avail themselves of the
mechanism provided by the Philippines’ Local Government Code to withdraw endorsement of the
dam, but the project continued. The Philippines’ Indigenous Peoples’ Rights Act provides for free
and prior informed consent and enables an indigenous community to prevent the implementation
of any project which affects its ancestral domain in any way by refusing consent to the project.
Though Itogon’s indigenous communities petitioned the National Commission on Indigenous
Peoples to suspend the project because free and prior informed consent had not been given, the
commissioners declined to act on the petition. Thus, the laws designed to protect the indigenous
communities were in fact ignored.