The complaint against Norway-based Intex Resources alleges that the companys planned nickel mine and factory in the Mindoro Province of the Philippines will violate the human and environmental rights of Indigenous Peoples.
The complaint contends the companys prospecting agreement overlaps with the Mangyan Indigenous Peoples land, particularly the Alangan and Tadyawan tribal lands. The tribes have property rights in the area, but were not consulted on the project. In addition, the complaint alleges the factory threatens vital water resources because of its proximity to rivers that provide water to neighbouring villages and agricultural fields.
Relevant OECD Guidelines
The Norwegian NCP forwarded the complaint to Intex Resources, and the company quickly responded with a public letter defending its operations. In March 2009, the NCP asked the complainants to comment on the companys response, and invited the parties to meet in the summer of 2009.
In related developments outside the NCP process, hunger strikes and protests by activists led to the withdrawal of the Environmental Compliance Certificate issued by the Philippine Government in October 2009. In addition, the Norwegian ambassador to the Philippines and the embassy secretary visited the Mindoro province and held meetings with groups supporting and opposing the project in December 2009. A report of their visit was sent to the parties for comments.
In March 2010, the NCP concluded its initial assessment and officially accepted the case. In order to better determine the facts on the ground, the NCP hired independent experts to further investigate the case. The experts visited Mindoro in January 2011 and established a factual basis for the case. In a publicly available report, the experts concluded that while Intex is operating in line with national legislation, the company is “not compliant” with the Guidelines with regard to a number of issues, including community and stakeholder engagement, environmental impact assessments, and disclosure and transparency.
After mediation was declined by the company, the NCP issued a final statement in which it concluded that Intex had failed to undertake a systematic assessment of the affected indigenous groups and had not properly consulted the affected groups.
The NCP found no evidence indicating that Intex was involved in bribery or corruption, but recommended that the company establish a solid managerial system to manage such risks, particularly since the operations were in a country figuring at the lower part of international corruption indexes.
The NCP also concluded that Intexs Environmental Impact Assessment (EIA) provided insufficient insight into and disclosure of its detailed management and monitoring plans.
The NCPs statement recognizes the importance and relevance of obtaining the free, prior and informed consent (FPIC) of affected Indigenous Peoples to the OECD Guidelines provision on stakeholder engagement and takes a broad and inclusive approach to consultation . Although Intex had acquired the FPIC of two affected Indigenous groups, the NCP questions whether the process of obtaining FPIC was adequate, given the fact that the company did not translate crucial information into local Indigenous languages that the company obtained the groups FPIC before the EIA, which contains vital information regarding the potential negative effects of the project for people and the environment, was completed. The NCP also recommends Intex to identify primary and secondary indigenous groups potentially affected by the MNP and consult all indigenous peoples affected by the mine and associated infrastructure.
The statement also reaffirms that companies should conduct due diligence throughout all stages of a project, including the initial planning phase.
The NCPs statement contains several recommendations for how Intex can better bring itself in line with the Guidelines. The recommendations address issues such as community engagement, disclosure and transparency, and the companys operational-level grievance mechanism.