FPIC PROCESS RAILROADED?: Collusion, corruption allegations hound dam projects in last nature frontier of the Cordillera

By Karlston Lapniten

Philippine Center for Investigative Journalism

  • Pan Pacific Renewable Power Philippines Corp., a company engaged in building energy sources, intends to build two large hydropower plants – Gened 1 and 2 – which threaten to submerge communities in Kabugao, Apayao.
  • Communities reported irregularities in the consent process and collusion among authorities and proponents, which allegedly led to the improper release of the permits for the two mega-dams.

LA TRINIDAD, BENGUET – In the 1970s, indigenous peoples (IPs) in the Cordillera region launched a remarkable resistance to river dam projects, a movement that led to the global recognition of indigenous rights.

For over a decade under the martial rule of then President Ferdinand Marcos, the Kalinga and Bontok IPs resisted the Chico River Basin Development Project. The project called for four massive hydroelectric dams that would have affected an estimated 100,000 Kalingas and Bontoks and submerged villages in Kalinga and Mountain Province.

The fight was long and violent, and many among the Kalinga and Bontok peoples lost their lives, but the highly publicized struggle led the World Bank, which bankrolled the project, to revamp its operational guidelines on projects affecting IPs. It was also key to the passage of Republic Act (RA) 8371, also known as the Indigenous Peoples Rights Act of 1997, or IPRA, which institutionalized the mechanism for Free and Prior Informed Consent (FPIC). FPIC gives IPs the right to approve projects that could affect them and their ancestral domains, and negotiate terms and conditions.

Almost half a century later and under another Marcos administration, the IP struggle in the Cordillera seems to have been resurrected just a few kilometers up the Chico River, where the indigenous Isnag communities are resisting four similarly massive dam projects along the mighty Apayao River.

Proposed right at the heart of Apayao’s capital town of Kabugao, the 150-megawatt Gened-1 Hydroelectric Power Project (HEPP) and the 250-MW Gened-2 HEPP threaten to submerge the Kabugao and Tawit ancestral domains.

The two other dams – the 30-MW Calanasan-1 HEPP and the 220-MW Calanasan-2 HEPP – are being planned for the adjacent Calanasan town, also an Isnag territory.

The dam projects aim to harness the power of the Apayao-Abulug River, which ranks sixth among the Philippines’ largest river systems. It has a drainage area spanning 3,776 square kilometers and stretching to a length of 175 kilometers.

All four are projects of San Miguel Corp. (SMC)-controlled Pan Pacific Renewable Power Philippines Corp. (Pan Pacific), one of the eight Philippine conglomerates and corporations that benefited from the $3-billion loan agreement the Duterte administration entered with China in 2016.

Like the failed Marcos Sr.-era dam projects, allegations of deceit, corruption, and collusion between the proponent and government officials riddle large-scale projects within indigenous lands.

“The FPIC should have leveled the playing field between us IPs and the proponent corporation. But, instead, it was used to oppress us,” Jillie Karl Basan, a former overseas worker, said in an interview.

Basan, who returned to the Philippines due to the impending Apayao dam projects, is a member of Kabugao Youth, a group of young Isnag professionals and students. Working together with elders, they act as their community’s liaison and secretariat in dealing with formal documents and legal matters.

Initially, the group focused on social media and online advocacies to combat misinformation on the effect of the dam projects and seek public support. But soon, they became the frontliners of the struggle, serving as spokespersons and de facto leaders of the affected communities.

The Isnag are also called ‘Yapayao,’ which means ‘People of the River,’ as they rely on the Apayao River for their livelihood. (Photograph by Karlston Lapniten)

‘People of the River’

In northern Luzon, the Isnag are also called “Yapayao,” which means “People of the River.” They get their livelihood from the Apayao River, a navigable river that they also use as a transportation hub.

According to a June 2021 FPIC report, the Gened-1 dam, if it pushes through, will submerge communities in the barangays or villages of Bulu, Magabta, Poblacion, and Waga in Kabugao town, and Lt. Balag in Pudtol town. At least five other Kabugao villages will also be directly affected.

Aside from displacing hundreds of village folks, Gened-1 will destroy the Isnag burial grounds and their traditional fishing grounds and farms, Basan said. It will also severely alter the biodiversity of the Apayao, dubbed the “last nature frontier of the Cordillera.”

Apayao is listed as a “key biodiversity area” by the Department of Environment and Natural Resources. The province’s pristine biodiversity was brought to the spotlight in 2011 when sightings of Philippine eagles were confirmed in the forests of Kabugao, Calanasan, and Pudtol.

With this much at stake, critics pointed to irregularities when the National Commission on Indigenous Peoples (NCIP) commenced the FPIC process over the proposed Gened-1 dam in 2019, after it was started and halted in 2017.

NCIP Administrative Order No. 3, Series of 2012, or the revised guidelines on the FPIC process, seeks to ensure compliance with procedures and standards related to the consent process, among others. If observed properly, the guidelines give the IPs a say in the implementation of projects that will affect them and their ancestral domains.

At the center of the FPIC process are the consultations, or the Community Consultative Assemblies or CCAs. Done in a series of three meetings, the CCAs are meant to offer space for the indigenous community to understand proposed projects so they may be able to build consensus and decide whether to give their consent.

A map of Kabugao and the site of the proposed mega-dams.

Stalled FPIC process revived 1.5 years later

After the second CCA in Pudtol in September 2017, the FPIC process suddenly stopped without any explanation to the community, Kabugao Youth’s Basan said. The first CCA was held in April 2017.

Based on the FPIC guidelines, inaction of the applicant within six months from the last FPIC activity, without justifiable reason, shall be grounds for termination of the FPIC process. However, the NCIP resumed with consensus-building in early 2019 without explanation for the abrupt halt of the 2017 FPIC activity and the subsequent inaction of the applicant without justifiable reason for more than one year.

According to the guidelines, an FPIC team should facilitate and document the proceedings of the assembly and “be responsible for the interpretation, translation, clarification, or elaboration of matters discussed or taken up.” Likewise, the FPIC team, composed of NCIP and local officials as well as IP representatives, should orient the participants on the pertinent provisions of IPRA at all stages and activities.

“Had we been made aware of the rule at that time, we would have terminated the FPIC and we would not be having this problem now,” said Basan.

The resumption of the FPIC process more than a year later, in 2019, resulted in varying results.

In Pudtol, the affected barangay agreed to the construction of the dam in January 2019, after Pan Pacific offered livelihood, scholarships, and facilities to entice the people. However, a month later in Kabugao, the IP members rejected the project with a “Resolution of Non-Consent.”

Still, the NCIP approved Pan Pacific’s motion for reconsideration. In March 2019, 75 Kabugao residents were transported to Hotel Carmelita in Tuguegarao City in nearby Cagayan region for another consensus-building session.

The commission facilitated the activity with John Anthony Amid, the Kabugao municipal indigenous peoples mandatory representative (IPMR), despite the FPIC guidelines clearly stating that no meetings, negotiations, and assemblies should be held outside the affected ancestral domain.

Based on the official transcript, Amid informed the attendees that the “meeting” was “focused on the conditions the proponent should meet for the approval of the project to proceed to (the) Negotiation part.”

The attendees were given the chance to affirm their earlier rejection of the project and allow the negotiation. But they were given only 10 to 15 minutes to make a decision, which resulted in a “yes for negotiations,” allowing the FPIC process to proceed.

Community elder Angelo Umingli said the period was not enough for the community to decide properly as the process being facilitated by NCIP in the first place is against the rules.

Apart from doing the consultations within ancestral domains, the FPIC guidelines state that 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.

‘Yes for negotiations’ retracted

In September 2019, over 300 community members gathered in Kabugao supposedly to identify their negotiators who will talk to Pan Pacific.

During the program, then NCIP Provincial Officer Agnes Gabuat asked the community to stand up if they intended to push through with the negotiation. Only one barangay chairman stood up.

Gabuat then asked the crowd what they wanted, but no one spoke up.

Finally, Gabuat asked the crowd to stand up if they wanted to retract the “yes for negotiation” decision. Everyone stood up. This prompted the drafting and signing of a resolution affirming the non-consent by the Kabugao community.

“This affirmation of rejection should have sent a clear message that the people do not want this project,” said Jann Alexis Lappas, also of Kabugao Youth.

“Our ancestral lands and this river that sustains us and our livelihoods are more valuable than a dam,” said Lappas, who studies anthropology at the University of the Philippines Baguio.

Despite the community’s rejection of the project, IPMR Amid organized a gathering on Dec. 20, 2019 in his personal capacity. During the event, then NCIP Regional Director Roland Calde and FPIC Team Leader Atanacio Addog presented the supposed benefits of allowing the dam project while personnel of Pan Pacific gave a “minute explanation.”

An activity report was submitted by the NCIP stating that the objective of the event was “to ensure acceptability of the project to the IPs/ICCs beneficiaries.”

Such activity is not part of the FPIC process, however. Yet the event, an initiative of the IPMR and not of the community, and not brought about by a motion for reconsideration by the project proponent, were recognized by the NCIP.

The presence of the Pan Pacific personnel is also deemed a prohibited interference under the FPIC guidelines.

Anti-dam sentiments started to appear on the Conner-Kabugao Highway in 2021 such as these vandalized road barriers in Dibagat village and a welcome sign in Lenneng village. (Photograph by Karlston Lapniten)

‘Authorized elders’ list contested

Identifying IP elders, one of the activities done during the first CCA, is crucial in the FPIC process as the elders are supposed to perform an important role in representing the community in the negotiations.

As the FPIC process was revived in 2019, the NCIP recognized a resolution issued on Dec. 23, 2019 that named 209 individuals as “authorized elders” of the Kabugao ancestral domain holders. It also authorized these elders to negotiate on behalf of the community.

The resolution, which stemmed from a gathering organized by Amid, was approved and signed by 173 persons, as evidenced by attendance sheets.

Umingli and Warling Maludon, another elder, however, said no public notices of the purported meeting were given to the communities affected. When the resolution was made public, many who allegedly signed the resolution later denied having done so, according to Kabugao Youth.

Basan said others signed the attendance sheet merely as an acknowledgement for receiving a pack of groceries or “ayuda,” not to approve certain people as “authorized elders.” Many signatures were also reportedly forged, while other names were allegedly tampered with to change the original names in the document.

A copy of the resolution showed that many of the alleged signatories only wrote the initials of their name, and many of the names were written with similar handwriting styles. Kabugao Youth also found that the list of signatories even included dead people, while other signatories signed twice.

Lappas noted that the Dec. 23, 2019 resolution ran contrary to the agreement during the first community assembly that any decision during the FPIC would be done collectively by the community.

“By recognizing the sham resolution, the NCIP changed the FPIC process and shifted our decision-making process from collective to selective. That is illegal,” he said.

Despite protests, the NCIP held and facilitated an initial negotiation between the “authorized elders” and Pan Pacific at Ivory Hotel in Tuguegarao City in January 2020. Again, the FPIC guidelines expressly prohibit the holding of consultations outside the ancestral domain area.

Within just a few weeks, the Covid-19 pandemic and ensuing lockdowns paralyzed the country, halting community assemblies and meetings for the rest of 2020.

Alleged MOA manipulations

On Jan. 15, 2021, around the time when Covid-19 restrictions were slowly easing, over 300 Kabugao IPs gathered at the town center and passed a resolution titled: “Strongly Expressing Our Opposition and Banning of the Proposed 150 MW Gened 1 HEPP of Pan Pacific Renewable Power Philippine Corporation (PPRPPC) and Withdrawing Our Yes to Negotiation, Only Consent from Continuing the FPIC Process in Whatever Stage.”

The following February, newly appointed NCIP Regional Director Marlon Bosantog went to Kabugao and declared the Jan. 15, 2021 Kabugao IP resolution invalid. He claimed that the resolution was signed by only 20 of the supposed “authorized elders” in the questioned Dec. 23, 2019 NCIP resolution.

Lappas said they raised the issue of the invalidity of the Dec. 23, 2019 NCIP resolution and the event that drafted it, but were ignored by Bosantog.

“The acts of the regional director show his purpose which is as clear as the irregularities in the December resolution,” he added.

In a gathering set by the NCIP in March 2021, Bosantog reportedly told the community to “stop changing their mind” and imposed ballot voting, a voting system not indigenous to the Isnag, to determine the negotiation process. He assured them that a “yes” vote would agree to “negotiations only.” However, as succeeding events turned out, an affirmative vote meant approval of the project.

Of the 128 “authorized elders” present during the event, 86 voted “yes” while 42 voted “no.”

Shortly after, on April 7, 2021, the NCIP called for an assembly and presented a draft Memorandum of Agreement (MOA) between the Kabugao ancestral domain holders and Pan Pacific.

Community elder Umingli, however, said the presentation was done in English and without a visual presentation or copies of the agreement handed to the attendees.

“This should have been done in Isnag, or at least in Iloco, so that the community will understand,” he said. Iloco is the lingua franca of the Cordillera region, home to dozens of ethnolinguistic groups.

Lappas said Pan Pacific and NCIP agreed to give the community a month to review the MOA. On April 19, 2021, the local government called for a community meeting to review the proposed MOA.

However, Lappas said Pan Pacific did not furnish the Isnag representatives a copy and no review happened.

To the surprise of the community, Bosantog, Addog, and two other NCIP staff – NCIP Kabugao Head Geoffry Calderon and Joy Butgui – facilitated a MOA signing the next day between the supposed “authorized elders” and Pan Pacific at Barangay EKB, which is not an affected area.

Basan of Kabugao Youth said there was no prior notice to the community, hence, the signing was done without a community assembly.

Under FPIC guidelines, a MOA signing should be conducted through a community assembly, which requires at least seven days prior notice posted in conspicuous public places.

“That was not an agreement with us, the ancestral domain holders. It was a MOA between Pan Pacific, their selected dealers, and NCIP,” said Basan.

In a bid to discontinue the MOA, the community filed formal complaints and requested copies of the MOA and other documents five times – on April 20 and 27, and on May 2, 3, and 14 – but all were ignored by the NCIP.

On June 11, 2021, community elder Maludon called 8888 Citizens Complaint Hotline to report the NCIP’s inaction on the complaints they personally submitted to the NCIP office in Baguio City on May 3.

Four days later, NCIP’s Addog, signing on behalf of Bosantog, replied that “the complaint has been acted (sic) by the office.” However, Lappas denied receiving any action from the NCIP.

Similar requests on June 17 and 30 were again ignored by the NCIP.

A child jumps off a small cliff to swim in the Apayao River. (Photograph by Karlston Lapniten)

NCIP review team finds irregularities in MOA

In July 2021, the MOA was submitted for review to the NCIP Regional Review Team (RRT), which is tasked to “make a judicious and complete review of the FPIC report and the MOA.”

The RRT found the MOA to be “uncertain” and riddled with “seeming irregularities,” similar to the findings of Kabugao Youth on the Dec. 23, 2019 NCIP resolution.

The RRT found that the signatures of eight signatories appeared different across several sets of MOAs, 15 signatures were duplicates, and none of the persons named from barangays Magabta, Laco, and Dagara signed.

The encoded names were reportedly tampered with to change the signatories, and certain signatures appeared to have been faked. At least 25 handwritten names were also inserted in the MOA.

A few months after the three-member RRT team submitted its review, two of the three members, including its head, were transferred to other posts.

Meanwhile, at the NCIP commission en banc, the Certification Precondition was verbally approved on Aug. 13, 2021 after three special deliberations. Two of the seven commissioners registered their reservations about the approval given the irregularities of the FPIC process, which were highlighted in the RRT review.

The issuance of a Certification Precondition meant that the FPIC of the affected IP has been obtained and the project may proceed.

In an undated video conference call, a copy of which was obtained by Philippine Center for Investigative Journalism (PCIJ), NCIP Commissioner Roland Rivera was recorded as saying that the NCIP would fight and stand (verbatim: ilalaban namin ito, tatayuan namin ito) for the dam projects because Apayao “needs development.”

The NCIP, through its regional office, and Pan Pacific, have not responded to requests for comment sent by the PCIJ.

IPs file motion for reconsideration

On Aug. 23, 2021, the community filed a motion for reconsideration to overturn the approval. The NCIP en banc set the deliberation on May 24, 2022, but later rescheduled it to June 21.

On June 21, just 15 minutes before the supposed start of the deliberation, an NCIP staff member informed the community elders that the deliberation was again rescheduled to June 27.

On June 27, the NCIP again informed the elders of another rescheduling through a mere text message. This prompted the elders to submit a motion for the immediate resolution of their motion for reconsideration – which meant they no longer wanted to attend the rescheduled deliberation.

As the deliberation was to be conducted through online video conferencing, the community elders gathered at Poblacion, Kabugao where the network signal was strongest, through a gadget set up by the Kabugao Youth.

“The last-minute continuous re-scheduling of [en banc] deliberation is a blatant disrespect to our elders. It is a scheme to deliberately exhaust them physically, financially, and emotionally,” said Basan.

She said their elders had to walk several kilometers or rent motorcycles and vehicles to Poblacion while others had to travel through the Apayao River.

Dangerous precedent

Should Gened-1 proceed, it would set a dangerous precedent – that FPIC processes and guidelines no longer work to protect IPs, Basan said.

“[If approved], project proponents can now overturn community rejections through forgeries until they achieve what they want. Our (IPs) voices are no longer relevant,” she said.

Basan said the Isnag won’t back down on their campaign to “prevent the start of damming” the Apayao River.

Early in 2022, Kabugao Youth obtained a copy of a draft municipal resolution “strongly supporting the implementation of Pan Pacific’s request” for the redesign of the Gened-2 service contract and the addition of two hydropower plants in the proposal.

The resolution also intended to give Pan Pacific “exclusive access and exclusive utilization of water resources of Apayao-Abulug River and its tributary rivers for power generation as well as exclusive access to its surrounding lands” as the “exclusive renewable energy developer.”

No municipal official has openly admitted to drafting the resolution, said Basan.

Legal assistance groups have reportedly taken notice of the IP opposition to the dam projects and have offered free legal services.

“This land was bestowed to us by the Lord and our ancestors. Only the evil people would wish for our destruction,” said Isnag elder Budin Balalang, the indigenous peoples mandatory representative of Barangay Dibagat.

“This is our land. This is our ancestral domain. The government already recognized that. We should be the ones deciding, and our decision is ‘no,’” he added. –PCIJ, September 2022