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Court denies anew firm's claim of fpic interference

The Regional Trial Court has upheld anew the right of indigenous peoples - in this case the natives of Kabayan, Benguet - to seek information regarding proposals to set up hydroelectric plants within their river resources.

Judge Jennifer Humiding of RTC Branch 63 denied the motion for reconsideration of Hedcor Kabayan, a private energy developer, asking the court to issue a writ of preliminary injunction against the Benguet Electric Cooperative (Beneco) for allegedly interfering with or influencing the on-going "free and prior informed consent (FPIC) process the company is conducting for its Kabayan II hydropower plant.

Hedcor Kabayan, part of the Aboitiz group of companies active in several hydro-power generation projects in the Cordillera, earlier accused Beneco of influencing the FPIC process and "violating the exclusive rights of Hedcor as renewable energy developer of Kabayan hydro power generation project..."

The case stemmed from the request of Onjon ni Kasikuran Shi Kabayan (ONKASKA), an organization of residents of the town, asking Beneco to conduct a detailed engineering and design study on Hedcor's Agno I and Agno 2 within the ancestral domain of Kabayan along the Agno River.

Beneco acted on the request of the Kabayan folks for assistance, triggering the suit filed by Hedcor accusing the cooperative of interfering in the FPIC process, the conduct of which is a mandatory preliminary process for such projects.

"The (Indigenous Peoples'/ Indigenous Cultural Communities') access to all information affecting their interest should be guaranteed by the diversity of the sources and means of information available, thus enabling them to check the accuracy or facts and to appraise data, scheme and proposals objectively consistent with a laissez faire approach to the regulation or speech and expression," the court noted in its initial decision dismissing Hedcor's complaint.

In its second petition, Hedcor claimed that the reliance of the court on the laissez faire approach might be misplaced in this instance because the Philippines has never been a laissez faire state".

The court countered that "this is not an attempt to contravene the pronouncement of the Supreme Court that this country has never been a laissez faire state, rather on the precept that ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that transparency is the only ground upon which the ICC's/IP/s wishes can be carried out, within the context of the conduct of the FPIC process".

The court questioned Hedcor's "alleged exclusive right to conduct the FPIC process without undue influence".

"Foremost," the court said, Section 20 of the revised guideline on the exercise of FPIC that "the process is a right particularly conferred to all ICCs/IPs who are owners of the ancestral domain. Categorically, such right was not waived or transferred to Hedcor who can claim exclusivity in its exercise."

"Second", the court noted, "the riht of the ICCs/IPs to exercise the FPIC processsis consistent with Sections 2 and 3 of the guidelines that rcognizes the right of the ICCs/IPs to self- determination \ self-governance and empowerment, all in keeping with their right to determine which among several offcers works best for them/"

"Third, Hedcor is merely an applicant for the issuance of a CP from the NCIP, neither the IPRA Law nor its guidelines grant Hedcor the right to conduct FPIC process...... - Ramon Dacawi.

 
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