Respect law, IP rights, gov tells Nueva Vizcaya huge dam operator

By Leander C. Domingo

BAYOMBONG, Nueva Vizcaya: Gov. Carlos Padilla has appealed to the new operator of the $675-million California Energy (CE) Casecnan Multi-Purpose Project (CMPP) to observe the Indigenous People's Rights Act of 1997 (IPRA) in favor of the Bugkalots there or face social problems not only now but forever.
    In a Provincial Development Council (PDC) committee meeting, Padilla had to contend with claims by the state holding firm Power Sector Assets and Liabilities Management Corp. (Psalm) that the Regalian doctrine prevails over water ownership in the Casecnan area, which means it belongs to the state.
    A combined irrigation and power generation project located at Sitio Pauan, Barangay Villarica, Pantabangan, Nueva Ecija, the CMPP has two 26-kilometer run-off weirs and intake structures constructed along the Casecnan and Taan Rivers located in Pelaway, Alfonso Castañeda town.
    CMPP's 20-year build-operate-transfer scheme between the CE Casecnan Water and Energy Co. Inc. (Cecwec) and the National Irrigation Administration (NIA) that kicked off in 2001 officially ceased on Dec. 11, 2021.
    In 1994, Cecwec, a unit of the United States-based CalEnergy group of companies, started developing the project.
Psalm and NIA assumed control of the CMPP at 60 percent and 40 percent, respectively, and on Dec. 11, 2021, both took over to operate the 165-megawatt CMPP through a designated third-party operator that won the public bidding for the CMPP's operation and maintenance.
    Psalm designated the Korean Soosan ENS Co. Ltd. as CMPP operator after it passed the post-qualification process.
In October last year, it declared Soosan as the lowest bidder for a one-year Operation and Maintenance Service Contract for the CMPP.
    Padilla believes the water rights belong to the Certificate of Ancestral Domain Title (CADT) owner, the Bugkalot tribe under the IPRA law, and thus the Bugkalots have the right to claim what is due them under the law.
    "Since the water rights belong to the CADT owner, the Bugkalots have all the rights over the Casecnan water and thus are entitled to the benefits provided by the IPRA law," the governor said.
    CADT refers to a title formally recognizing the rights of possession and ownership of Indigenous Cultural Communities/Indigenous Peoples over their ancestral domains identified and delineated under Republic Act 8371.
During the PDC committee meeting on April 8, 2022, Psalm maintained its position that the IPRA law or the conduct of a free, prior and informed consent (FPIC) does not apply when it took over control of the CMPP designating a Korean company to operate it.
    Psalm's lawyer Ivan Zamora reiterated the former's position that if the CMPP project itself predates the IPRA law, the provision of the IPRA does not apply in Casecnan and so does the conduct of FPIC.
    In response to Zamora, Padilla warned Psalm that the Bugkalots are the people of Nueva Vizcaya and that he has the opportunity to confer with them.
    "Whether you win legally or not, but as long as you do not satisfy the people, I tell you, we will have a problem not only now but forever. I mean I am telling you this frankly as governor because I have the opportunity to deal with these people," he told Psalm.
    Padilla added that he knows very well the Bugkalot culture and that once upon a time these were the headhunters of the province of Nueva Vizcaya.
    "I do not want that heads will roll in the Casecnan area simply because this issue is not resolved," he said, appealing to the government, Psalm and others involved in the renewed operation of CMPP to review the provisions of the IPRA law of which he was one of the authors during his time as congressman.
    The Bugkalots are loyal allies and supporters of the national government, even in the fight against terrorism and subversion, they were very steadfast and so as governor, what I am afraid of is that we might alienate their support and shift their loyalty to another, Padilla said.
    "If we can reason out together without going to the court, then we can come up with a win-win solution to maintain tranquility and peace in the area, sustain and maintain the support of the Bugkalots who since time immemorial have been very loyal to the national government," he added.
    Padilla noted that Casecnan is a high ground that cannot be controlled by the communist New People's Army simply because of the Bugkalots presence there.
    "We should not surrender that high ground. We want the area to remain peaceful and that Psalm or government can operate in the area and do so without violating the law," he said.
    While recognizing Psalm's position, Padilla reiterated a Supreme Court decision that the Casecnan area is governed by the IPRA law.
    "The Regalian [doctrine] is not the one that is involved here but the provisions of the IPRA law as it has been rendered by the Supreme Court in its decision," he said, adding the law identifies what are those that belong to a tribe in so far as their CADT right or their ancestral domain is concerned.
    Padilla said he is not insisting on legalities and is hoping that the government may be able to reconsider its position without going to court.    
    "Government should set an example [because] it was the one [that] approved the IPRA law. It is clear and does not distinguish whether you are a government, a private corporation, or not. There are provisions of the law that have to be observed and one of them is in so far as things that belong to the tribe people," he added.
    On the other hand, Zamora explained that Psalm's position is not prejudicial and does not intend to prejudice any IP group.
    "We are just looking out for the correct implementation of the constitutional prerogative or Regalian doctrine. On the other hand, we are also looking at Psalm's vested interest," he said

Padilla, however, said, after all, there is a CADT agreement and that agreement is in place and has not been assailed and therefore the provision of the CADT should be also observed.

He added that if Psalms believe that provisions of the CADT are unlawful, then the burden belongs to them, not the Bugkalots.

"About royalty which is being asked by the Bugkalot, whether it is Psalm or Soosan, I agree it should not be an issue [with the provincial government]. It should be an issue between the Bugkalots and the company," Padilla said.

But, he added, whether the Bugkalots can collect a royalty or a fee, the provisions of the IPRA law are also very clear as spelled out in Section 3 wherein a requirement is the conduct of FPIC.

"FPIC applies to everybody including the government, whether their contention is royalty or not, the fact that you (Psalm) are inside their territory, then the FPIC must be observed," the governor said.