Court junks HEDCOR’s bid to stop BENECO in Kabayan hydro

LA TRINIDAD, Benguet  – A local court denied the motion for reconsideration of the Aboitiz-owned Hydro-electric Development Corporation (HEDCOR) Kabayan, Inc. seeking reversal of its earlier decision that junked its petition for the issuance of a writ of preliminary injunction enjoining the Benguet Electric Cooperative (BENECO) from allegedly interfering in the conduct of its free and prior informed consent (FPIC) process for its proposed 52-megawatt hydro project in Kabayan and Bokod towns.

In a 23-page order, Judge Jennifer P. Humiding of the Regional Trial Court (RTC) Branch 63 stated that HEDCOR is merely an applicant for the issuance of a certificate of precondition (CP) from the National Commission on Indigenous Peoples (NCIP) and neither the Indigenous Peoples Rights Act (IPRA) nor its guidelines grant HEDCOR the right to conduct the FPIC process since it is the agency concerned that will endorse the application for CP to the hierarchy of the bureaucracy.

The court stated that an examination of the tedious FPIC process allows the participation of HEDCOR in the stages, specifically the submission of application with accompanying documents, appearance of pre-field based investigation and pre-FPIC conference and on-payment of pre-FBI or FPIC fee and during the second community assembly whereby the applicant is allowed to present its plan, program, project or activity that it seeks to undertake.

The decision added HEDCOR’s participation has a threshold in the conduct of the FPIC process contrary to its claim of exclusivity to conduct the said process.

“Evidently, HEDCOR cannot claim exclusive right to conduct FPIC process to secure a CP from NCIP, thus, HEDCO failed to establish a clear legal right to a writ of preliminary injunction,” the decision stressed.

Assuming without conceding that the new obligation merely reiterated and ratified the old obligation by increasing the original capacity of the project by 6 megawatts and changing the project name, the court asserted HEDCOR cannot still assert the right to conduct exclusive FPIC process.

The court pointed out that the acts of BENECO in allegedly interfering with the FPIC process as complained by HEDCOR did not arise within the milieu of the same process since the acts were related to the request and intent of the Onjon ni Kasikuran shi Kabayan (ONKASKA) to partner with BENECO wherein the indigenous peoples organization had already initiated talks with the cooperative long before HEDCOR came into the picture or before it was able to secure from the energy department its hydro service contract.

It stipulated that the acts of ONKASKA are outside the realm of the FPIC process to be undertaken by the NCIP and not by the HEDCOR, more so that the ONKASKA was never impleaded in the said case and to do so would just be futile since the acts of the group and that of BENECO are pursuant to their intention to forge a partnership.

The court claimed the acts of BENECO or its joint efforts with UNKASKA did not categorically disturb, intimidate or much less influence the FPIC process being conducted by the NCIP to determine the issuance of the certificate of precondition for the HEDCOR.

By HENT

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