Philippines: Intex Resources Found in Breach of International Guidelines

Published by MAC on 2011-12-05
Source: Statement, GMANews

Intex Resources Found in Breach of International Guidelines

Indigenous Peoples Links (PIPLinks) Press Release

30 November 2011

The Norwegian National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises (the Guidelines)i has published its final statement in response to a complaint against Intex Resources ASA (Intex) concerning the Mindoro Nickel Project (MNP) on the island of Mindoro in the Philippines.ii

Sign at Mindoro Nickel site telling the company not to enter Photo: Andy Whitmore

The complaint was submitted by the Norwegian organisation Future in Our Hands (FIOH), in conjunction with PIPLinks and Middlesex University Department of Law in the UK, and ALAMIN in Mindoro the Philippines. The NCP has found Intex wanting in relation to the three alleged breaches of the guidelines:

1) Inadequate consultations and failure to obtain legally required consent: The NCP found that Intex “has not been able to foster the necessary relationships of confidence and mutual trust on Mindoro in accordance with the OECD Guidelines” and its assessments and consultations were “inconsistent with the requirement of the OECD Guidelines”.iii It raised particular concerns that a broad and inclusive approach had not been taken to consultations, leading to the exclusion of affected indigenous peoples from the process. It also found the legally required Free, Prior and Informed Consent (FPIC), purportedly obtained from the indigenous peoples, “was not sufficiently informed” and that reason exists to “to question the procedures by which the FPIC was obtained”.iv

2) Concerns regarding undue influence and lack of transparency: the NCP quotes a report of the Philippine's National Commission on Indigenous Peoples (NCIP) noting that the manner in which almost 1 million pesos was disbursed to it by Intex was “a blatant disregard of, and failure to observe and comply with the procedure … related [to] activities or projects such as delineation and titling application activities”.v The NCP finds that “the involvement of Intex in these procedures merits further investigation by appropriate authorities” and that “Intex renders itself vulnerable to criticism that it sought to influence the outcome of a public decision concerning the ancestral rights of competing indigenous peoples.”vi

3) Failure to adequately assess projects environmental risks and disclose these to stakeholders: The NCP was particularly critical of Intex’s Environmental Impact Assessment (EIA), identifying weaknesses in its content and on the very limited nature of engagement and consultation with stakeholders. The NCP “upholds the allegations of FIOH, finding that the information provided on environmental impacts is incomplete”.vii It “expects Intex to provide the public with “adequate and timely information” on the environment, health and safety impacts of the project ... [and] … “to engage in “adequate and timely communication and consultation” with the affected communities on environmental risks”.viii The statement provides numerous examples of where Intex has to date failed to do precisely this, and explains that such a failure “constitutes a breach of Chapter V of the OECD Guidelines.”ix

According to Fr. Edwin Gariguez, of ALAMIN, a network of Mindoro civil society organizations, citizens and local business people opposed to the project, “The communities in Mindoro had always been pointing out the flaws and grossly questionable processes by which the Intex Resources was forcibly pushing the Mindoro Nickel Project at the expense of peoples’ opposition, the rights of the indigenous peoples and the threats to our fragile ecosystems. We are thankful that we can have recourse to international standards and mechanisms like the OECD Guidelines. The statement of NCP in Norway, after three years of investigation, confirms the major deficiencies that we have been complaining about. We hope Intex will honestly admit their lack of management capacity to pursue this project.”

The statement concludes with a clear, and exhaustive, set of recommendations in order for Intex to comply with the Guidelines. To address its highly deficient EIA and consultation process the company is required to “[c]onduct due diligence in relation to the entire project impact area, including associated infrastructure’, ‘prepare a revised Environmental and Social Impact Assessment (ESIA or EIA) that provides a comprehensive and detailed analysis of all the environmental and social implications of all components of the project’ and ‘[e]ngage in consultations with all impacted indigenous peoples in an understandable language and form, respecting the outcome of the consultations’.x [emphasis added]

The NCP highlights that “mistrust of Intex may affect reputational risks for other actors and add to local tension, such as support for paramilitary groups ... Norwegian-led peace efforts between the government and Maoist groups may be undermined.”xi The statement confirms that ‘overall, opposition to the MNP is strong’xii and notes the presumed validity of existing Island wide 25-year moratoria on mining.xiii Quoting from the 2007 Report of the Norwegian Ambassador it notes that the company might have “substantial difficulty obtaining [the necessary environmental approval] – because of the massive local resistance, not least the resistance in the Mangyan people’s NCIP-registered organisations”.xiv In light of this reality, compliance with the NCP’s recommendations would imply that the only legitimate avenue available to Intex is to withdraw its nickel mining project from Mindoro.xv

ENDS

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Additional quotes:

“We have engaged in this complaint process for nearly three years. It is satisfying to see many of the points raised by local people and their supporters vindicated. Indeed the text itself is often more critical of the management of this project than the conclusions would lead one to believe. It remains to be seen how much this criticism will affect things on the ground.” - Andy Whitmore, Indigenous Peoples Links (PIPLinks)

“The NCP’s thorough analysis of Mindoro Nickel Project leaves no doubt as to Intex’s repeated failure to comply with the OECD Guidelines since 1997. The statement points to: a) a history of seriously flawed consent seeking processes and a failure to guarantee consultation with the “legitimate representatives of all the affected indigenous peoples”; b) grossly inadequate environmental impact assessments “in light of the known risks related to mining in vulnerable environments”; and c) questionable financial transactions and procedures which merit “further investigation”. These major deficiencies in the company’s local level practices are now exposed much needed national and international scrutiny.” - Cathal Doyle, Middlesex University Department of Law / Indigenous Peoples Links (PIPLinks)

“Despite requests from the NCP, Intex has not been able to present a clear, proactive, stakeholder engagement strategy. The Mindoro Nickel Project (MNP) does not have any indigenous peoples’ specialists on its staff; although in 2007 consultants prepared an Indigenous Peoples Development Plan Framework for the project. The MNP has commissioned a large number of technical and environmental studies, but not made these publicly available in a way that would help people evaluate the projects claims.” - From the Norwegian NCP Statement, p. 27

Attachments: Final Statement of the Norwegian Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises re Complaint from the Future in Our Hands (FIOH) against Intex Resources ASA and the Mindoro Nickel Project (please visit: http://www.regjeringen.no/upload/UD/Vedlegg/ncp/intex_final.pdf)

Photos available: Photographs of the mine site, including a sign put up by the Mangyan – in Tagalog - telling Crew (former owner of MNP) to keep out (jpeg); photographs from opposition rallies (jpeg)

For additional information contact:

Andrew Whitmore
Indigenous Peoples Links (PIPLinks)
Tel: 0775 439 5597
E-mail: comms@piplinks.org
Web: http://www.piplinks.org

Cathal Doyle
Middlesex University Department of Law / Indigenous Peoples Links (PIPLinks)
Tel: +353 89 411 0100
E-mail: doncathal@gmail.com
Web: http://www.mdx.ac.uk

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Notes for editors:

i. The OECD Guidelines for MNEs comprise a set of voluntary principles and standards for responsible business conduct. The Guidelines are not legally binding. However, OECD governments and a number of non-OECD countries have committed to encouraging multinational enterprises operating in or from their territories to observe the Guidelines. See: http://www.oecd.org/department/0,3355,en_2649_34889_1_1_1_1_1,00.html

ii. The complaint was submitted on 26 January 2009. It can be viewed at: http://www.piplinks.org/system/files/Complaint%20OECD_Intex_2009-01-26.pdf. As a minimum the complaint insisted the company: 1) Ensure the consent of the indigenous population on an informed basis where all the information, including the consequences for the environment and the impact on their culture, is presented, 2) The Environmental Impact Assessment must be carried out, as well as consultations with other concerned parties than the indigenous peoples. The analysis must be verified by an independent third party, 3) The company must not donate project funding that may be perceived as intended to influence local communities in any particular direction. All of these demands were addressed in the recommendation of the NCP.

iii. The complaint was submitted on 26 January 2009. It can be viewed at: http://www.piplinks.org/system/files/Complaint%20OECD_Intex_2009-01-26.pdf. As a minimum the complaint insisted the company: 1) Ensure the consent of the indigenous population on an informed basis where all the information, including the consequences for the environment and the impact on their culture, is presented, 2) The Environmental Impact Assessment must be carried out, as well as consultations with other concerned parties than the indigenous peoples. The analysis must be verified by an independent third party, 3) The company must not donate project funding that may be perceived as intended to influence local communities in any particular direction. All of these demands were addressed in the recommendation of the NCP.

iv. Norwegian National Contact Point statement, page 7

v. Norwegian National Contact Point statement page 32 quoting from Report from the NCIP Fact-finding team (9 October 2008).

vi. FPIC is a requirement under the 1997 Indigenous Philippine Rights Act. The NCP highlighted that the implementation of this law is often lacking, quoting UN Special Rapporteur on the Rights of Indigenous Peoples. Norwegian National Contact Point statement, page 7,9, 17, 18, 35

vii. Norwegian National Contact Point statement page 10

viii. Norwegian National Contact Point statement page 10

ix. Norwegian National Contact Point statement, page 10, 34

x. Norwegian National Contact Point statement page 11

xi. Norwegian National Contact Point statement page 28

xii. Norwegian National Contact Point statement page 27

xiii. Norwegian National Contact Point statement page 14 ‘Both of the provinces and two municipalities where the mine site and project facilities are expected to be located have declared a 25-year moratorium on mining. Such a time-limited mining moratorium is presumed valid until it is challenged and declared unconstitutional by a court, according to the Philippine Department of Justice.’ Quoting from Philippine Department of Justice (DOJ) Opinions No. 035 s. 2001 and extracts from DOJ Opinions No. 008, s. 20051 reaffirming the legal position outlined in Opinion No 35 s. 2001.

xiv. Norwegian National Contact Point statement page 27 quoting from Report of Ambassador Ståle T. Risa to the Office of Secretary for Development, September 26, 2007

xv. Norwegian National Contact Point statement, page 29

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The Norwegian-owned Mindoro Nickel Project in the Philippines should consult a broader group of indigenous peoples and be more transparent about adverse environmental impacts, concludes the OECD National Contact Point (NCP) Norway

Norwegian National Contact Point release - http://www.regjeringen.no/en/sub/styrer-rad-utvalg/ncp_norway/report_intex.html?id=664912

30 November 2011

The Future in Our Hands (FIOH) filed a complaint against Intex Resources to the Norwegian NCP in January 2009. Philippine Indigenous Peoples Links and Alamin support the complaint regarding the Mindoro Nickel Project (MNP).

The NCP recognises that the project is still at a planning stage but finds that the company does not act in accordance with the OECD Guidelines for stakeholder consultations and the environment. The NCP also makes recommendation to how the company can know and show that it minimises risk for adverse impacts in the environment and on local communities, especially indigenous peoples. The NCP has not found evidence for allegations of corruption, but finds that the involvement of Intex merits further investigation by appropriate authorities.

Intex has conducted extensive environmental and social assessments, they have consulted with some indigenous groups and they plan to use technically advanced solutions to reduce potential adverse environmental impact. But the company still has a ways to go to operate fully in compliance with the OECD Guidelines, says Head of the Norwegian NCP, dean and professor Hans Petter Graver.

Key recommendations concern improved stakeholder consultations and environmental assessments and information. The company is advised to perform due diligence to know and show that it minimises risk for adverse impacts in the environment and on local communities, especially indigenous peoples.

The NCP recommends the company to identify primary and secondary indigenous groups potentially affected by the MNP and consult all indigenous peoples affected by the mine and associated infrastructure. Intex should develop the EIA in accordance with the International Finance Corporation’s (IFC) Performance Standards, make the draft Environmental Impact Assessment (EIA) publicly available in local languages, finalise the EIA in dialogue with all relevant groups, and ensure a review by an independent third party.  The NCP recommends the company to establish a grievance management system in accordance with the UN Guiding Principles on Business and Human Rights and covering the range of possible grievances including environmental health and safety, labour rights, and community grievances.

The complaint is assessed against the OECD Guidelines for Multinational Enterprises, Recommendations for Responsible Business Conduct. All members of the Organisation for Economic Cooperation and Development (OECD) have a National Contact Point (NCP) to handle complaints against companies for violations of the OECD Guidelines.

The Norwegian NCP concludes the complaint after almost three years of examination. The NCP was reorganised in 2010. The new NCP entered into office on 1 March 2011. Both the company and the complainant declined an offer of dialogue in March 2011. Hence, the NCP is issuing a final statement on the alleged violations of the Guidelines. The NCP final statement underscores that OECD Guidelines apply at all stages of production, including planning.

Key sources in this final statement are documentation from the parties, an independent fact-finding report by JSL Consulting commissioned by the Norwegian NCP, environmental expert reports, embassy reports, Philippine laws and regulations, UN documents and other reports.

Contact:

Dean and professor Hans Petter Graver, h.p.graver@jus.uio.no; +47 906  06 085
Head of Secretariat Hege Røttingen her@mfa.no +95409493

www.responsiblebusiness.no

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Int'l group claims mining firm in Mindoro violated indigenous peoples' rights

GMA News

3 December 2011

A Norwegian mining company with a nickel project in Mindoro allegedly violated several guidelines for multi-national enterprises established under the Organisation for Economic Co-operation and Development (OECD), an iternational organization has said.

In its final complaint statement, the Norwegian National Contact Point (NCP) said that aftter three years of investigation it found out that mining firm Intex Resources had obtained a Free, Prior, Informed Consent (FPIC) from the affected indigenous peoples of Mindoro through questionable procedures.

The Indigenous Peoples' Rights Act (IPRA) requires that those exploring and exploiting natural resources in the ancestral domains must first obtain a FPIC.

Also, the NCP stressed that Intex should "consult broader groups of indigenous peoples and be more transparent" and inform them of the environmental impact of the firm's mining project covering11,200 hectares located between the provinces of Oriental Mindoro and Occidental Mindoro.

While the NCP's final statement gives recommendations for Intex to comply with OECD Guidelines, some groups in the area believe that the company should pull out and withdraw its mining project.

Alyansa Tigil Mina (ATM) national coordinator Jaybee Garganera said, "This is what many organizations in the Philippines have been waiting for, a validation that Intex was in breach of OECD guidelines and rights of communities in Mindoro."

"We believe this [NCP finding] is more than enough reason for Intex to completely pull out from Mindoro, especially since the province has a 25-year moratorium on mining that should be respected," Garganera added.

Moreover, he said the Philippine government must cancel the Environmental Compliance Certificate (ECC) it had issued to Intex and withdraw the firm's mining contract.

The ECC issued to Intex allows for nickel ore extraction in an 11,216-hectare land area, a big portion of which forms part of a critical watershed catchment of Mag-asawang Tubig and Bucayao River systems, the largest sources of water for the irrigation of about 40,000 hectares of rice lands in Calapan City and the towns of Naujan, Baco, and Victoria, the ATM said.

For his part, Fr. Edu Gariguez, executive secretary of the Catholic Bishops' Conference of the Philippines, National Secretariat for Social Action, Justice and Peace (CBCP-NASSA), said in a statement: "The communities in Mindoro had always pointed out the flaws and questionable processes by which Intex Resources pursued the mining project despite peoples' opposition..."

Meanwhile, Judy Pasimio of Legal Rights and Natural Resources-Kasama sa Kalikasan (LRC-KsK/FOEI) said "The NCP report affirmed that the presence of Intex Resources in Mindoro is unlawful. It has affirmed what the Mangyans have been saying all along - that they have not given their consent to Intex, that the FPIC was a bogus one."

In November 2009, members of the Mangyan indigenous communities and residents of Mindoro Oriental staged a hunger strike in front of the Department of Environment and Natural Resources (DENR) national office in Quezon City to protest the Intex mining project in the province.

"The findings of the NCP should finally convince the DENR that there are sound legal basis for the cancellation of the ECC of Intex... that this deceitful mining company should not be allowed to operate in the Philippines," Pasimio said.

The OECD aims "to promote policies that will improve the economic and social well-being of people around the world." Its guidelines adhered to by member-countries provide voluntary principles and standards for responsible business conduct. - Jerbert Briola /MRT/LBG, GMA News