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IN RE: DISPII\CEMENTCOMPII\INT OF R-ESIDEI|ITS OFDIDIPIO, KASIBU, NI,'EVAVIZCAYA- [CHR-H-zoo8-ooSs(sPL. REPORT) l

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RESOLUTIONCHR(IV) No.Aaofl-oo4

The ultimate goal of economic development is to raise the quality oflife of cll people. To this end, the State promotes the firll and efficient use ofits human and natural resources by encouraging private entities to invest inkey industries and business enterprises. However, when private entitiesviolate the fundamental rights and entitlements of the people in tle nameof economic development, they not only lose tleir moral legitimacy * theyalso defeat the very purpose for which they were given authority to conductbusiness. The present case is a classic aad lamentable example of howeconomic aggresslon denigrates the most basic of humaa rights.

This case is about the alarming human rights situation in BarangayDidipio, IGsibu, Nueva Vizcaya. At the center of the controversy are the6iping operations of Oceana Gold Philippines, Inc. (OGPI), a foreign-owned corporation, with which the national government of the Philippineshas entered into a Financial and Technical Assistance Agleement (FTAA).Several residents of Didipio object to the large-scale mining in their area onaccount ofperceived adverse economic and environmental impact that suchactivity would cause to their community. Majority of the residents inDidipio are indigenous peoples although they are originally from otherplaces and tlus cannot directly clairn ancestral domain over Didipio.Reports and complaints reached the Commission on Human Rights(Commission for brevity) afleging widespread and systernatic violations ofhuman rights committed by OGPI and the security sector against residentsopposed to large-scale mining. The tense situatjon in tle area has notabated and seems to be only getting worse.

In furtherance of its commitment to protect and promote humanrights, and pursuart to its mandate to investigate violations thereof as well

I*!rapatang Pr!otao: Likas Sa Atln, ?ungkulin Natin

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Cantur,,lt"althArenue, (l.P Ca jplex, Dilnnau ll0l, Quez.rl Cit't. PhiliDDines

as mouitor compliance tlerewith, the Commission took cognizance of thiscase, After a thorough review of all the information and documentsgathered, the Commission finds that, indeed, human rights violations werecommitted against the indigenous peoples inhabiting Didipio.

, TITE REI'VANTFACTS

On 24 June 1994, President Fidel V. Ramos entered into a FTAA withArimco Mining Corporation (AMC) for the exploration, development andutilization of minerals located in about g7,ooo hectares of land situated inthe provinces of Nueva \rizcaya and Quirino. Included in this area isBarangay Didipio in Kasibu, Nueva Vizcaya.

On 03 March 1995, President Ramos signed into law Republic Act No.7942 otherwise known as the Philippine Mining Act of 1995. Some of theprovisions of said law which are most relevant to this case are the following:

Sec. 75 Easement Rights. When mining areas are so situated thatfor purposes of more convenient miniug operations it is necessatyto buil4 construct or install on the mining areas or lands owned,occupied or leased by other persons, such inftastmcture as roads,railroads, mills, waste dump sites, tailings ponds, warehouses,staging or storage areas and port facilities, tramways, mnwats,airports, electric transmission, teiephone or ielegraph lines, oalrsand &eir normal flood and catchment areas, sites for water wells,ditches, canals, uew river beds, pipelines, flumes, cuts, shaffs,tunhels, or mills, the contractor, upon pa]'ment of lrstcompensation, shall be entitled to enter and occupy said miningareas or lands.

Sec. 76 Eritry into Private Iands and Concession Areas. Subiect toprior notification, holders of mining rights shall not be prwentedfrom entry into private lands and concession areas by surfaceowDers, occupants, or concessionaires wben conducting miningoperations therein: Provided That any damage done to th6properly of the surface owrcr, occupan! or concessionairc as aconsequence of such operations shall be properly compensated asmay be provided for in the implementing rules and regulations:Provided f,uther, That to guamntee such compensation, the penouauthorized to conduct mining operation shall, pdor thereto, post abond with the regional director based on the type of properties, theprer,ailing prices in and around the area-wbeG tie mininsoperations are to be conducte4 with suety or sureties satisfactoryto the r€gional director.

On $ August 1995, the Department of Environment and NaturalResources (DENR) issued the Implementing Rules and Regulations (IRR)of R..d No. 7942 through Department Administrative Order(DAO) No. zg,series of r99S. This was superseded by DAO No. 96-4o, series of 1996.Pertinent to this case are tle following provisions of said IRR:

Section 106. Voluntary Agre€ment

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A voluntary agrcement between a surface owner, occupant orconcessionaire thereof permitting holdeN of mining dghts to enterinto and use its land for mining purposes shall be registered with' the concerned Regional Offrce. The said agreement shall be bindingupon tfre parties, their heirs, successors-in-interest alld assigDs.

Section 1o7. Compensation ofthe Surface Owner and Occupant

Any damage done to the property ofthe surface own€r, occupant orconcessionarre thereoi as a consequence ot the mrmng operauonsor as result of t]le construction or installation of the inftastructurementioned in Section 1o4 above shal be property ald justlycompensated. Such compensation shall be based on the agreemententered into between the holder of mining rights and the surfaceowner, occupant or concessionaire thereof or, where appropriate, inaccordanee with P.D.sp. In case of disagreement or in the absenceof an agr€ement ttre matter shall be brought before the Panel ofArbitxatom for proper disposition.

In late 1995, AMC consolidated with Climax Mining.Limited to form asinge company named Climax-Arimeo Mining Corporation (CAMC). InDecember 1996, CAMC transferred all its rights to the FTAA to AustralasianPhilippine Mining, Incorporateal (APMI), which transfer was approvetl bythe DENR nine years after in December 2oo4.

On rr October zoo5, t}te DENR issued an Order approving tle PartialDeclaration of Mining Project Feasibility for tle Didipio Gold/CopperProject. Said project is covered by the FTAA held by APML In December ofthe same year, APMI launched a "Surface Rights Acquisition" (SRA)Program to enter the lands within the Project area.

On 3o March 2006, the Supreme Court issued a decision on the caseof Didipio Earth Savers' Multi-Purpose Association (DESAMA), et cl vs.Go rn et cl. upholding the constitutionality of the "taking" provisions ofRd No. 7942 and its corresponding rules and regulations. The dispositiveportion of the decision reads:

"WHEREFORX, the instant petition for prohibition andrncndcmus is hereby DISMISSED. Section 76 of Republic Act No.7942 and Section loi of DAO 96-40; nepubiic ect N6. 7942 and itsImplementing Rules and Regulations contained in DAO 96-40 -insofar as they relate to financial and technical assisranceagreements retbrred to in paragraph 4 of S&tion z ofArticie xrt otthe Constitution are NOT UNCONSTTTUTIONAL.

SO ORDERED."

O 1 June 2oo7 APMI changed its name to OGPI;

In June 2oo8, reports and complaints were filed with the CHRalleging that OGPI had illegally ard violently demolished some r87 houses

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orders of demolition from the court, unaccompanied by tle Sheriff, withoutpayment of just compensation, and witlout providing alternative optionsfor relocation and resettlement. These clemolitions were reported to havebeen attended by unnecessary violence and destruction: residents whoresisted and triecl to save ttreir homes had been beaten, including theirneighbours who helped them; houses had been bulldozed off eliffs and seton fire. It was further alleged that OGPI fenced off large sections of theroads and pathways which community residents have relied upon for thepast 30 years to transport pmduce from their farms to the market, It wasalso reported that OGPI has set up checkpoints around the Barangay,causing tlem difficulty in moving abou! resulting in the unjust restrictionof t}reir social and economic activities. Moreover, it was alleged that thePNP-Regional Mobile Group serves as a "private security force" of OGPI,with their officers being stationed inside the facilities of tle latter.

While the CHR was silently investigating and monitoring the matter,reports about alleged harassments and incidents of violence against thosewho strongly oppose the mining operations kept persisting, The situationreached a critical point on 02 October zoog when, during an attempt todemolish several houses, more than one hundred members of the PNPallegedly used tiuncheons, shields and tear gas to disperse protestingresidents from demolishing the houses of their neighbors. Reports said, theMayor of Kasibu and the Barangay Chairperson of Didipio were included inthose who were violently dispersed. This incident prompted theCommission to give priority to the settlement of human rights issues inDidipio.

On o5 November 2oo9, tle Commission, led by no less thanChairperson Leila M. de Lima, together with Commissioner Jose Manuel S.Mamauag, Attorneys Robert Alcantara and Gemma Parojinog, and otherofficers from CHR Region z Offrce, conducted an ocular inspection ofDidipio to see for themselves the coudition in the area. Accompanied by theMayor of Kasibu, Nueva Vizcaya, and other local offtcials of BarangayDidipio, the Commission took a three-hour drive from Solano. NuelaVizcaya to the impact area. Upon arrival to Didipio, the Commission was atfirst refused entry by security officers who looked like soldiers. After thesecurity officers finally got a go-signal from ttreir radio, the security ofhcersallowed the team to pass. Members of the team heard the security officerssay, "mga toga-munisipryo lang yan " When the team identified themselvesas officers of the Commission on Human Rights, the security ofEcersbecame more accommodating towards the team and wen escorted them tothe affected areas. The team then went to inspect t]le entire impact area,including the proposed site of dams for mining purposes feared to causeshortage of clean and safe water for domestic and irrigation purposes.

The next day, the team convened a Pubic Dialogue with the objectiveof understanding the controversy from all perspectives. Said publicDialogue was attended by officers of OGPI, PNP officials, LGU officials.representatives of the National Commission on Indigenous peoples (NCIp),

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and NGO and community leaders and members. During the Dialogue,OGPI was given all opportunity to address anery allegation cast at them.Likewise, the police was allowed to explain its participation in thecontroversy, including the October oz dispersal. The Commissionrequested from tle participants all pertinent documents and remrcls thatwould have a bearing in the determination of the human rights issues inDidipio. The stakeholders complied several days after the Public Dialogue,submitting voluminous records and documents to support their positions.Much of the documents came from OGPI and the NGOs.

IIIE HUMAN IIIGITTS IssUEs

Various issues have muddled the controversy in Didipio. In fac!numerous criminal, civil and administrative cases have been filed left andright, all of which have for their root the mining operations in the area. Inaccordance with international norms, standards and principles, theCommission has resolved to address the following human rights issues:

I. WIIETHER oR NoT OGPI VIoIAIED THE RIG}IT To ADEQUATE HousINGAND PRopERTy RIGltrs oF SEVERAL RESIDENTS rN DIDrpro;

il. WHETHER oR NoT OGPI 1'IoI,ATED ITTE RIGHT To FREEDoM oFMoVEMEM AND THE RIG}TT NoT To BE st'B.IEcTED To ARBITRARYINIERFERENCE WITH THI HOME OF THE PEOPLE IN DIDIPIO:

III. WHETHER oR NoT OGPI I'IoL{IED THE fuGIIT To SECURTTY oF PERsoNOF TIIE PEOPLE IN DIDIPIO;

ry. WHETIIER OR NOT OGPI VIOLATED THE INDIGENOUS COMMUNfft'SRIGHT To MANIFF,ST UIEIR CULTURE AND IDENTTaT

V. WHETHER oR Nor OGPI vrorarED Tr{E fuGHT To WATER oF firEreoeLn w Dutto; and

VI, WHETHER oR NoT THE PNP 1'IoIATED ITs owN oPERAfioNALPRocEDuFss DURING THE OcroBER 2 INCTDENT.

These issues shall be addressed in sen'otr'm.

TI{E FIIYDtrYGS

I. OGPI \IoLATED fllr RIGII] TO RESIDEIYCE, TIIE RIGHT ToADT4UAIE IIOUSING AND PROPERTY RIGITAS OF SFYERALRESIDENIS TN DIDIPIO.

The Right to Residence, Right to Mequate Housing and protection ofProperty Rights are well recognized in botl international and domestic

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laws. Article $ (1) of the Universal Declaration of Human Rights (UDHR)states that "everyone has the right to fteedom of movement and residencewithin the borders ofeach State." This declaration ofthe Right to Residenceand Freedom of Movement is reiterated in Article rz (r) of the InternationalCovenant on Civil and Political Rights (ICCPR) which provides: "Everyonelawfully within the territory of a State shall, within that territory, have theright to liberty of movement and freeclom to choose his residence."

While many international documentsl recognize the Right toAdequate Housing, Article rr (r) of the International Covenant onEconomic, Social and Cultural Rights (ESCR) is considered to be the mostrelevant anil most comprehensive provision.r Said provision reatlsl

'The States Parties to present Covenant recognize the right ofeveryone to an adequate stanilard of living for himself and hisfamily, including adequate food, clothing ard housin& ard to thecontinuous imprcvement of living conditions. The States Partieswill take appropriate steps to ensure the international co-operationbased on free consent (emphasis adileil.) "

The Committee on Economic, Social and Cultural Rights (CESCR)issued General Comment No. 4 on Mequate Housing and GeneralComment No. 7 on Forced Evictions, elaborating on tbe normative contentsof the Right to Adequate Housrng. According to the CESCR, the Right toAdequate Housing should not be interpreted nilrrowly to mean having aroof on one's head, Rather, it should be seen as the right to live somewherein security, peace and dignity, in conformity with the inherent dignity of.thehuman person.3 It can be gleaned from the aforementioned GeneralComments that the Right to Adequate Housing contains several freedomsand entitlements. These freedoms include: protection against forcedevictions and the arbitrary destruction and demolition of one's home; t]teright to be free from arbitrary interference with one's home, privacy andfamily. On the other hand, tle entitlements include: security of tenure;housing, land antl property restitution, equal and nondiscriminatoryaccess to adequate housing; and participation in housing-related decision-making at the national and community levels.a

The right to property, on ttre other ha:rd, is well entrenched in ourConstitution. Article III, Section r of the 1987 Constitution unequivocallystates that " [n]o person shall be deprived of his life, litr:rerty or propertgwithout due process of law xxx" (emphasis cdded). Likewise, tht Civil

I A-s indicated in CESCR ceneml Conm€nt No. 4, See article 25 (l) ofrhe Univenal Declaralion on Hurnsn Riehts.anicle 5 (e) (iii) ofthe lntemalional Convention on the Elimination ofAll Fontrs ofRacial Discrimilarion articie 14(2) of the Codventiod on the Elimination of All Forms of Discriminajion against Wome& artiole 22 (3) of th€Convenliotr on drc Rights oflhe Chil4 aticle l0 ofthe Deolahtion on Sooial prcgress and Developmen! s€ction III(8) offte Vadcouver Declamtion otr Human Settlehe !, 1976 (ReLort ofHabit* Unit6d Nations Confer€nce onHuman Settlements (Jnited Ndtions publication, Sales No. E.76.IV.? and conigendurn), chap. D, article 8 (t) oftheDeclaration on the Right io D€v€lopment and the ILO Recommendatiotr Colcemhg Wo*ers, Housing, 196l CNo._l l5).

l CESCR General Coffment No. 4, Pdragraph 3.' CESCR CeDeral Conmeot No.4. Paragraph 7' See genenly CESCR cenaal Comment No. 4 and ceneral Cotnment No. 7; OHCH& The Right to AdequateHousing, Fact Sh€€t No. 2l&ev.l (2009).

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Code of the Philippines aad Rules of Court provide for other importantlegal framework that guarantees and protects the Right to Property.

OGPI violated these rights pertaining to several of Didipio's resitlentswhen it forcefirlly wicted them in contravention of existing laws, rules andregulations.

Evidence obtained by the Commission indicate that OGPI has causedthe demolition of at least one hundrerl and eighty-seven (r87) houses of theindigenous residents in Didipio. Said demolitions were done uithout acourt order and ruifhout provision for adequate relocation, as required bylaw. This was readily and categorically admitted by Mr. Ramoncito Gozar,OGPI's Vice President for Communications and External Affairs.

In defense, OGPI claims tlat its conduct is lawful. It interposes its (1)right of immediate entry aad (z) right to exercise the power of eminentdomain granted unto it as an FTAA holder, under Section 75 on EasementRights and Section 76 on Entry into Private Lands Areas of the PhilippineMining Act of 1995, in relation to Section ro4, Section ro5, Section ro7 andSection ro8 of its IRR. This right, OGPI claims, was recognized by theSupreme Court in DESAMAus. Gozun.

Precisely, in DESAMA ef ol vs. Gonrn et al, the Supreme Courtclassified Section 75 and Section 76 of the Philippine Mining Act as "taking"provisions, justified by State's power of eminent domain. While such powermay be invoked and effectively exercised by private parties (i.e, holder ofmining contracts such as OGPI), in cooperation with the State, the remedyis sfill to file expropriation proceedings and secure the necessary courtorder. OGPI may not demolish and "take" tle residents' properties, withoutfirst complying witl the requirements of law and due process, It cannot begainsaid that under our laws, demolitions must be done pursuant to a courtorder. There being none, OGPI's conduct is patently unlawfirl and inviolation of the residents' right to properly and due process.

A closer examination of the DESAMA Decision will reveal thatindeed, expropriation proceedings are the proper remedy in case a residentrefuses to enter into a voluntary agreement with a mining contractor. TheSunreme Court said:

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"An examination of ttre foregoing provisions gives no indicationthat ttre courts are excluded from taking cognizance ofexpropdation cases under the mining law. The <iisagreemenr.refened to in Section 1o7 does not involve the exercise of eminentdom,ain, rather it contemplates of a situation wherein the permit

fol{ers ary allowed by the surface owrers enty into the l-atters,lands and disagreemgnt ensues as regarding the propercompensation for the allowed entry and use of ttre private lands.Noticeably, tie provision points to a voluntary sale or transaction,but not to an involuntary sale.s"

5 DESAMA s, al vs. cozun er a,/, c.R No. 157882, 30 March 2006.

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This pronouncement of t]le Supreme Court means tlat Section ro7 of theIRR, in relation to Section T6 of the Philippine Mining Act of 1995, onlyapplies when the surface owners have already entered into an agreementwith tle permit holder, tle only controversy being tle amount to be paid asjust compensation. It does not apply in cases where the surface owners donot agree to allow permit holders entry to their lands. In such cases, theproper remedy would be for the permit holder, by itself or with theassistance of the State, to institute an expropriation proceeding in theappropriate court, as provided under Rule 67 of the Rules of Court andrelevant jurisprudence.

Further, the Commission takes particular note of OGPI's apparentscheme of "demolish now, negotiate later." This scbeme is problematig tosay t}re least, as it pushes residents up against tle wall. Those whose houseswere demolished without their consent - some even against their expresswill - are now forced to take the petty sum OGPI offers in exchange fortheir homes and their lives in Didipio. The residents were reduced toaccepting OGPI's offer and succumbing to the latter's unlarfrrl ploy. Worse,a number of residents were never compensated at all.

While it may be true that about seventy-frve (ZS%) of the resitlents inDidipio have already entered into a voluntary agreement with OGPI, thereis still a considerable number of residents tlat has not entered into suchagreements. OGPI posits that much of these people are not really owners ofthe land they occupy. Assuming without conceding, that these people werein fact illegal settlers, this does not give license to anyone, much less aforeign-owned corporation, to mistreat ottrers, in violation of &e dignitytlat inheres in every human.

Even in those instances where eviction and demolition are justified,international human right norms require that they be "carried out in strictcompliance with the relevant provisions of international human rights lawand in accordance with general principles of reasonableness andproportionality."e "Evictions should not result in individuals beingrendered homeless or vulnerable to the violation ofother human rights."z

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As tlis Commission has advised previously demolitions must beconducted in a just and humane manner. Certainly, in some instances,dgmol$ons may.be,legally justified. However, in no instance, legally oiotherwise, can the deprivation of one's shelter be done in a manier thatrobs a person of his digniry.a

- FIAAs grart unto its holder the State's blessing to undertake miningand other exfiactive venhues, and all its necessary incidents. within its

' CESCR Ce4eral Cormeff No. 7, Paragraph 14.I -ad, Paxagraph f6'Commission o[ Human fughts, Advisory on the Codduct of Forced EvictioN and House Demolitions (06 May2008).

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patrimony. It is not carfe blanche for the wholesale denigration of humanrights of people who stand to be affected by said undertakings.

II.OGPI vror-arED TrrE RrGHT To FhEEDoM oF MoVEMENT AND firERIGHT Nory To BE SUBJECTED To AnBITRARY INTERFERDNCE wTuTIIIE HOME OF THB PEOPLE IN DIDIPIO.

Closely related to the abovementioued rights are the Right toFreedom of Movement and the Fjght Not to be Subjected to ArbitraryInterference with One's Home.

The UDHR expressly declares these rights in tle following manner:

Article 12No one shall be subjected to arbitmry interference with his privacy,family, home or correspondence, nor to attacks upon his honor andreputation. Everyone has the right to ttre protection of the lawagainst such interference or attacks.

Afiicle 13(r) Bveryone has tfie right to fteedom of movement and resi<ience

within ttre borders of each state.

The ICCPR reiterates these provisions, to wit:

Article rzr. Overyone lawfully within the territory of a State shall, within

that territory, have the right to liberty of movement and fteedomto choose his residence.

Article r7No one shall be zubjected to arbitrary or unlawfirl interferencewith his privacy, fanrily, home or correspondence, nor tounlawftrl attacks on his honor aad reputation.Ereryone has the right to the protection of the law against suchinterference or attacks,

e^HRC General Comme0t No. 27. Psragaph 5.

'"14, Paragraph 6.

In its General Comment No. e7 on Freedom of Movement, tleHuman Rights Committee (HRC) clarifies that Article 12 (1) of the ICCPRentitles persons to move from one plape to another and to establishthemselves in a place of their choice. The enjoyment of this right must notbe made dependent on any particular purpose or reason and anyrestrictions thereof must be in strict conformity with law's Moreover, tleHRC pointed out the obligation of States to ensure the protection of theRight to Movement not only from public but also from privateinterference.to The HRC also stated tlat right to reside in a place of one'schoice within the territory includes protection against aU forms of forced

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internal displacement. It also preeludes preventing tle enUy or stay ofpersons in a defined part of the territory."

On the otJrer hand, the HRC elaborated on the Nght Not to besubjected to fubitrary Interference with One's Home through GeneralComment No. 16. According to the HRC, this right is required to beguaranteed against all unlawful and arbitrary interferences whether theyemanate from State authorities or from natural or legal persons.oFurthermore, tle HRC stated tlat tle prohibition on arbitrary interferenceis intended to guarantee tlat even interference provided for by law shouldbe in accordance witl the provisions, aims and objectives of the Covenantand should be, in any event, reasonable in the particular circumstances,u

The bundle of property rights guaranteed by domestic law also findsrelevance on this instance. Article 428 of tle New Civil Cod states tlat "tleowner has the right to enjoy and dispose of a thing, without otherlimitations than those established by law." The right of ownershipnecessarily includes, among others, .7'us utendi (ight to use the property),jus ft-uendi (right to enjoy the property) and. jus disponmdi (right todispose of the property in whichever way the owner sees fit). Homeownershave dominion over tleir houses which they have a right to enjoy and to doas they please, even to spoil or destroy it as far as the law permits.r4

OGPI violated these rights of the people in Didipio when theyintroduced perimeter fences around the Project Area and set upcheckpoints at their chosen entry and exit points. These perimeter fenceiblocked off the roads which have been customarily used by the residents aspathways for their easy ingress and egress to the community. Furthermorgth9 chgckpoilts cause arbitrary interference to the firll use and enjoymentof tle houses by tle residents.

In defense, OGPI claims to have introduced tle perimeter fencesmerely to p_rotect its Project fuea flep rrntnryful elements and illegalsettlers. It further asserts that it has been autlorized by the BarangayCouncil of Didipio as well as by tle DENR to estabtsh the checkpoints toguard against contrabands.

- Ihe authorization given to OGPI by the Barangay Council of Didipioonly relates to the liquor ban. On the other hand, the authority coming frimthe DENR is only in respect of arresting illegal logging and illegal mining.Certalnly, OGPI cannot use tlese authorizitions tol*tify G arbitra;,interference to the enjoyment of the rights of the residents ofnidipio. OCfishould have devised a mechanism that avoids unnecessary incoivenienceto the residence at the same time that it serves the purpoie of prohibitingillegal activities.

" 1d, Paragraph 7.': HRC Ceoeral Comment No. 16, Paragraph i." Id., Par?'graph 4.'' Flenming vs. Sherwoo4 139 N.W. 101, JotrsoD vs. Crookshankr,29 pac. ZB.

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The Commission also observes that the Derimeter fences wereintroduced in conscious disregard of the rights of the residents of Didipio.No genuine consultation of the residents was ever had as to theconstruction of said fences, much less as to its location. At the very least,OGPI should have observed the basic principles of participatiou audtransparency if it really intended to respect the rights of the residents inDidipio.

III. OGPI vrollrrED TrrE Rrcr{r To SEcnRrry oF PERsoN oF firEPEOPLE IN DIDIPIO.

The security checkpoints situated along Didipio's main road andaround the perimeter of the Project Area are m.anneil by OGPI's privatesecurity personnel openly carrying arms, thereby threatening members of&e community.

Members of the Philippine National Police-Regional Mobile Group(PNP-RMG) of Nuera Vizcala and Quirino were also detailed in Didipio.Local residents of Didipio, however, report that instead of frrlfilling itsmandate to maintain peace ancl order in the community, said members ofthe PNP-RMG act as if they were the private security for OGPI, inabrogation of their sworn duty to serve the piople in trust.

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Likeruise, the unlawfrrl demolitions at ttre instance of OGPI were alsomirecl with violence. For example, during the demolition conducted on zzMarch 2oo8, local resident Emilio Pumihic was shot when he tried to stoDthe demolition crew from dismantling the house of his neighbor ManueiBidaug. Bidang was then taking a nap inside said house. Accounts fromneighbors who witnessed the shooting incident state that Emilio pumihicwas restained by two (z) of OGPI's security personnel, while a third - lateridentified as Whitney Dongiahon - shot Pumihic at close range whilePumihic was trying to free himself. The bullet pierced his upper right armand exited through tle upper right part of his back. the shooting incidentoccurred in plain view of members of the Philippine National police.Despite this, said Whibrey Dongiahon was not apprehended. These factswere attested to by Mr. Pumihic himself, and several others who witnessedthe incident.

Other members of tle community who strongly oppose large-scalemining operations are constantly threatened by violent demolition.Me-anwhile, leaders of the oppositionists were criminally charged withviolations of the Foresby Code.

This state of affairs in Didipio constitutes a continuing threat to thesecurity of persons of the people in Didipio. It e4roses tlem to constantuncertainty - to an incessant fear that something untoward might happento them, their.family or their properties. Rightly so, the local governmem

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units in t}te area eqnessed grave concerns that tle situation would lead tobreakdown of peace and order in the province.

OGPI is largely responsible for the continuing threats to security ofpersons, given that it controls and supewises the actions of its securityforces, and that tle unlawful demolitions were conducted at its behest.

IV. OGPI VIoI"ATED THE INDIGENoUS CoMMUNnY's RIGHT mMANIFEST TITER CI',I'UREAND IDENTUY.

Since December zoo7, OGPI has caused the demolition of at least onehundred and eighty-seven (r87) houses in Didipio. Over and above theilegality of subh conduct, this demolition resulted in the forceddisplacement of at least one hundred eighty-seven (r87) families whoconsider these houses their home. Majority of whom were forced to leaveDidipio for good, and abandon their indigenouS community, customs,traditions and way of life.

Certainly, the impact of OGPI's demolitions is irreducible to thephysical dismantling of ttre residents' houses. Demolition and the attendantdisplacement of indigenous peoples effectively deny said peoples the rightto enjoy and manifest their Ifugao culture in community with othermembers of their incligenous group, It means the dislocation anddisplacement of women, men and children. It means the destruction of lifeand a uay o/ft/e intimately connected with the land they nurhued, wi& aview to leaving a legacy for their children and theii kin that will come after.

Thus, the Commission finds that OGPI's demolition contravenes therights of indigenous peoples under Article z7 of the Covenant on Civil andPolitical Riglts, which guarantees indigenous peoples the right to manifestand enjoy their cnlture, both individually and ii commuiitg with othermembers of their group. Article r of tle United Nations Declaration on theRights of Indigenous Peoples ("UNDRIP') further guarantees indigenouspeoples the right to ttre firll enjdyment of all human rights and fundamentalfreedoms, as individuals and cs o coLlectiue. The corollary obligation thusconsists in ensuring the survival and continued developm6nt of thecultural, religious and social identity of minority groups, thui enriching thefabric of society as a whole.u

_ In.demolishing the houl es of indigenous peoples in Diclipio, OGpIeffectively precluded them of the right lo enjoy, manifest and ceiebratetheir. culture in c3r-nmulity _with their indigenous $oup. It irreparablyimpairedthe conditions by which the Ifugaos of Didipio, in trarmoiry witirtleir land aad each otler, previously pricticed Ifugio culture, traditionsand way oflife.

, /!t H.k Coo,JJ-., Gen*al Conmen No. 23 u N.Doc CCpR/c/Rev.l /Add.s (1994), palggr[ph 9.

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V. OGPI MUST EXDRCISE GREAT O\uIIoN IN EXPI,oITING TIIE WAIERREsottRcE oF DIDIpro, posslBr.y ENDANGERTNG rHE Comuurrry'sFTNDATT'ENTAI RIGHT TO AccESS To CI.EAN WATER.

The Right to Water entitles everyone to sufficient, safe, acceptable,physically accessible and affordable water for personal and domestic uses.'o

The CESCR General Comment No. rS is the first document thatdefined the rigbt to water. In this document the Committee emphasizedthat while there is no explicit mention of a'right to water'in the ICESR, theright to water is indispensably linked to the right to adequate standard ofIiving (Article rr) antl the right to the highest attainable standard of health(Article rz). Furthermore, the Committee explained that the right to wateris essential in the fulfiIlment of the right to life and human dignity. Andwhile there is no explicit mention of the Right to Water in the UDHR,ICCPR and ICESC& the same has already been recognized in many othertreaties, declarations and international documents. For instance, Articlez4(z) of the Convention on the Rights of the Child requires States parties tocombat disease anil malnutrition "through the provision of adequatenutritious foods and clean drinking-water." On the otler hand, Articie r4(z) of the Convention on the Elimination of All Forms of Discriminationagainst Women states tlat women shall have the right to "enjoy adequateliving conditions; particularly in relation to... water supply."- The GenevaConverrtions on .International Humanitarian l,aiv require combatants toprovide drinking water to POWs and civilians stranded in the armedconflict (GC III Articles 20,26, 29,46; Ap II Article S (r)), and even makethe destruction of drinking water installations ancl irrigations punishable aswar crimes (AP I erticle 54 (:), AP II Article r4).'z

- AII doubts as to the legal existence of the Right to Water were finallysettled when tle UN General Assembly adopted Resolution 64/L.6g on zBJuly eoto declaring "the right to safe and clean drinking watir andsaaitation as a human right that is essential for the full eniottrent of lifeand all human rights." Ttrus, the Right to Water is now idlntified as adistinct human right.

- -Paragraqh, rr o{ CESCR General Comment No. $ emphasizes thebroad scope of the-Rjght_to Water and puts in place a general'standard bywhich to measure the fulfillment of such a right:

"The. elem- €nts of-the right to water must be adequate for hnnfindignity, life and health, in accordance with Articles ll(r) and rz.

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\s'' CESCR Gederal Conlaent No. 15.".other docr*Jrts that rcfer to tlrc right to water incMe the following: the convention otr the Rights of po^onswtth Disabilitiesi the Aficatr charter oD $e Rights and welfare oflhe cfild; tie pmtocol to the Ariica! charter onturtrafl aoo reopres Rigr,ts otr tbe tughts of women in Aftica; united Nations Economic cormissiou for Europe(JNECE) Protocol on water aM H€alth; Agadda 21, adopted st the udted Nations conferenco od EnviroDdent andDevelopment cJNcED); tha Mar del plata Action plan; the prog.'Eme ofActior ofthe hteaational confercnc€g.Pqp{aqo! a4 Development; The UN-Habitat ptaa of A9tion; and dle various R€solutions adoptcd by theUnited Nations Ceneral Assombly and the Conmission otr Human Rights, as well as other oxDert alocumonts.

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The adequacy of water should not be interpreted narrowly, by merereference to volumetric quantities and technologies. Water shouldbe treated as a social arid cultural goo4 and riot primarily as aneconomic sood, lhe manner of tJre realization of the rieht to water' must also

-be sustainable ensuring tlat the right can b;realized for

present ard future generations."'8

Paragraph rz further identifies the three common elements or factorstlat are said to apply universally in all circumstances: auailabilitA, qualitAand accesshilw,re lhe absence or diminution of any of tlese threeelements translates into a violation ofthe right to nater.

Auailability means that there has to be a source where people can getsufficient quantity of water for their personal and domestic use. Thisincludes water for drinking, personal hygiene, footl preparation andcooking, washing of clothes, and household sanitation. Not only shouldthere be enough water to meet basic daily needs, but the supply should alsobe continuous or regular.

Quclirg means that water must be safe - it must not threaten tlehealth of those who use it, Thus, water must be ftee from microorganisms,chemical substances and radiological hazards that cause human diseases.Moreover, the water's color, odor and taste have to be acceptable.

Accessibilifu means that water and water facilities and servicesshould be alailable or accessible to anyone, without discrimination of anykind. It has four aspects: 1) Physical Accessibility; z) EconomicAccessibility; 3) Non-discrimination; and 4) InformationAccessibility.

As for domestic law, PD to67 also known a$ the Water Code of thePhilippines gives priority to ensuring water security for domestic purposes.Article zz of said law niovides:

Art 22. Between two or more appropriators ofwater from the samesources of supplg priority in time of appropriation sball give thebetter right, except tbat in times of emergencg the nse of witer fordomestic and. municipal purpses shall haue a better nght ouei allotfter uses; Provided, that wherc water shortage is recurint and theappropriator for municipal use has a lowei priority in time ofappropdation, then it shall be his dutv to find an alternative sourceo-f supply in acco_rdance with conditions prescribed by the Council(enphasis addeil).

The collectivity of tlese norms establishes two key points: (r) arecognition of the right to water as a distinct human righ! and (2) anacknowledgment of the State's obligation to ensure the security-anclavailability of safe and clean water supply for domestic purposes.

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t: CESCR Geieral Connent No. 15, paragtaph I l." CESCR G€neral Comeent No. 15, Paragmph 12.

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Althoug! there is as yet no breach of a right-duty correlative, it is withgreat caution tlat OGPI should proceed with its plan of diverting waterflowing through. the Tubo Creek and the Dinauyan River - the Diilipiocommunity's primary sources of water - to facilitate its mining operations,as the same poses a serious tlreat to the quantity and quality of thecommunity's T ryater resources.

In terms of guanfitg, given the immense volume of water required toprocess mineral ores, there is no certainty that an amount sufficient tosustain the communities in their day-to-day domestic and agricultural usesshall be left. The local communities could ill-afford a warer resouroe-intensive indusby such as mining competing witl tleir domestic andagricultural uses, especially so in light of the swere and protracted drought(El Nrno) the province has recendy suffered from and is predicted to suffermore frequenfly in the future because of climate change. The Commissionalso notes that the province of Nuera Vizcaya was specifically identified bythe Department of Agriculture as being particularly "vulnerable"2o to.theeffects of El lVino.2r As such, clean water - scarce as it is - is bound to getmuch scarcer.o

In terms of qualitg, contaminated discharges from the mineprocessing plants and tailings ponds could seep into the river systems inthe area vihich could cause human, aaimal and environrnental hazards thatwould eventually render the water unfit for any and all uses it hastraditionally been used for.,s

OGPI is thus advised to exercise prudence and extraordinarydiligence should it utilize ttre Didipio's water resources, lest it violateDidipio's indigenous community's human right to *ater.

VI. TTx PNP !'IoIATED ITs owN OPERAnoNAL PRoCEDI,RESDTJRING fiIE OCTOBER 2 INCTDENT BY CARRYING HTGF.FOWEREDFIREARIUS AND BY APPLYING UNNECASSARY AND TJNRX,ASONABLEFORCE.

The PNP Manual on Police Operational Procedures provides forstandard operational conduct for tle police in general and specialprocedures. Rule r9 thereof treats the standard procedure in Demotition

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'o To be "lulnqtabl6" idplies s sceptibility to, but imbility to cope witfr, c6.tain advolse impacts (i.e. ltat ofElNiDo) lFounb Quar.erly Report ofthe tnteBovernmental PmeJ on Climare Change]." D-4 lrcs! Offic€. DA SeLt Aside P569-M fot El Nino Mitigation Meatnes tu paldy Sector [afiiclo onlino],a\ajlable at http/w\a,w.da.eov.ph/nowirdex2.php?pass=News_ evefis/2o to/febfebo2_ 20loa.hrnl.- According to \F 4' Suane ! Report of rhe Inter-gol,enmernal Pdnel on Ctirnat Aange (I?CC), ClillLediecharge is €xpected to exaterbate curent st€sses on water rcsourcs fiom population grotth and economic andled-use change x x x Dmught-afected areas ale projoctcd to increase in,oxtent, with the potential for adv€Neimpacts otr multiple sectolq including agricutturo, wat6r 6upply, on€r$/ production and heal$. Regionally, largoitrcrcas$ in irrigation wator dematrd as a result ofolinate changes are projected. x x x- Euviromental and Sooial Impacts of Mi ng lafiicle odine], available 6t h$p://pdf.rri.org/rdlinlback$ound litemture_rcview.pdf.

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Orders, I4junctions, and other Similarthereof are directly quoted hereunder:

Orders. The relevant pmvisions

Sec. r. Role ofthe PNP in the Enforcement ofa DemolitionOrder -

a. Police assistance in the enforcement or implementation of ademolition or injunction order shall be granted only upon a writtenrequest of ttre Sherriff or authorized representative andaccompanied by a valid order issued by a competent court and / orwith wdtten permission from ttre Presidential Commission forUrban Poor. Moreover, said police assistance shall be coordinatedand cleared with tle concerned mayor before its enforcement.

b. The duties of PNP personnel in any demolition activity shall belimited to the maintenance of peace and order, protection of lifeand property, enforcement of laws and legal orders of dulyconstituted authorities, and to perform specific functionsprescribed by law.

c. PNP personnel tasked to provide police assistanee shall be inproper uniform and will be led by an officer during t]re actual andlegal relocation phase. Theg shall be limited onlV to o@lrpAing thefirst line of law mforcement and ciDil alisturbance control; shallnot pqrticipste in the phgsical ilismantling af ang structure subjectof evictbn tr ilanolition; qnd shall refrain lrom the use ofrmnecessary and unreasonable force (emphasis added),

Rule zr of the Operational Procedures deals with Civil DisturbanceManagement (CDM) Operations. Provisions applicable to this case are thefollowing:

Sec. z. $peciffc Guidelines -

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z. The members of the PNP CDM contingent sftall not cang angkind of frearms but may be equipped with baton or riot sticks,crash helmets with visor, gas masks, boots or anlde-high shoes witlshin guartls (emphosrs addedJ.

3. Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assernblv is attendedby acnral violence or serious threats of violence, or deliberatedestruction of property.

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Sec. 6. CDM Operational Arproaches -

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z. In selecting an operational approach to a civit disturbanc€situation, tle Commander ald his staff must adhere scmDulouslv tothe 'minimum necessary force" pinciple,fot

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example, crowd control formations or riot control agents should notbe used if saturation of area with manDower would sufEce(emphasis ailded).

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On October z, 2oo9, at least 165 police men were deployed to Didipioto assist OGPI in the implementation of the writ of execution issued by thePanel ofArbitrators against the Heirs of lawagan. Earlier that dar at about3:oo to 4:oo in tle morning, the house of Elmer Lawagan was burned byunidentified mel, some of whom were suspecterl to be members of OGPI'ssecurity guards, lawagan was also hit on his head by a hard wood frombehind. When the residents saw later in tle morning of that day thatOGPI's demolition was readying to tear down Lawagan's other houses,complete with a multitude of police men carrying high-powered firearmsescorting them, the people immediately formed a human barricade toprevent them from doing so. The police tried to break the barricaile anilthat is when the situation became chaotic. The police then used tear gas and'water canon to disperse the barricading people, The situation calmed downwhen the Regional Trial Court issued a Temporary Restraining Orderenjoining the demolition of Lawagan's properties a few hours later,

Regardless of who started the violence between the police men andthe protesting people on October o 2, 2oog, it appears quite clearly that thepolice violated its own operational procedures in approaching demolitionand CDM operations. It is expressly stated in the Police Manual that thepolice should nol carry any firearm during a CDM operation, which ispractically the role the PNP should take during an execution of a demolitionorder. Ukewise, the police should have exercised maximum tolerance andused minimum and reasonable force in dealing with the protesters. It isquite obvious that the deplol'rnent of 165 police men - most of whomcarried high-powered firearms to support the Sherriff in executing anappar"lt demolition from the POA - is but way beyond what is reasonablycalled for under the circumstances. Simply pu! it was an overkill.

The police argues that only 45 police officers were directly engased in :CDM operations that day and that the rzo police officers who carriEd hieh- npowered firearms were there to respond to intelligence reporb t[at nl"communists/terrorists" (CTs) might sow violence on tle iame dav. 'i

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However, the police did not furnish the Commission a copy of anv official / '','

intelligence report indicating threats of a CT attack in Didipio on October02, 2oo9. But even assuming that there were such intelligence reports, why r.:"1was it tha! accorrling to PNP Provincial Director Supt. pedro Danguilan, ,i".only 60 police officers were deployed to areas d Didipio repo.tedty Ifrequented by CTs? Where were the 6o otler police officers-who wire atsi, - iicarrying high-powered firearms? In the absence of any reasonable \explanation why 165 police offrcers were deployed in Didipio on that day,the inescapable conclusion is that they were deployed to assist the Sherriffand OGPI in carrying out the demolition of Lawagan's properties, ntt-- ,t l\{

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-. The Commissio! also expresses its deep concern over reports that thepolice deployed in Didipio are taking the side of OGpI insteadbf protecting$e ggneral peace and order. For example, it was reported that during thEdemolition conducted on zz March zoo8, local resident Emilio puriihicwas shot when_he-triecl to stop the demolition crew from dismantling theholse of his neighbor Manuel Bidang. Bidang was then taking a nap iisidesaid house. Acgounts from neighbors who witnessed the shooting incidentstate that Emilio Pumihic was restrained by two (2) of OGpI,i securitypersonnel, while a third - later identified as Whitrey Dongiahon - shotPumihic at close range while Pumihic was trying to free himself. The bulletpierced his upper right arm and exited tlmugh the upper right part of hisback. The shoo',ng incident occurred in plain view of members of the pNp.Despite this, tle police did not apprehenal Whitney Dongiahon. In anotherincident, a member of PNP-RMG publicly disrespected a barangay ofEcial,Councilor-Eduario Ananayo. In the evening of z3 March 2oo8, the dayafter the demolition, Seuior Police Officer 4 ("SPO+") Noel Valdez slappedCouncilor Ananayo, accusing tle latter of instigating the local residents tofire their guns at night to intimidate OGPI's staff. On top of all these, thereare allegations that tlre PNP-RMG deployed in Didipio il keeping stahon atOGPI's premises.

The Commission reminds the security sector, particularly the pNp-RMG in Didipio, ttrat ttrey are the protector of all people, not solely of tlerich and the powerfirl.

CoNcLUsroN

In light of the foregoing, the Commission RESOLVESUNANIMOUSLYTo:

r. Recommend to the government under ttre new aclministration tolook into the issues presented herein and consider the probablewithclrawal of the FIAA granted to the foreip company in view of thegross violations of human rights it has committed;

2. Require all concerned agencies, particularly the NCIP, the DENR-MGB, t}le PNP and the AFP, to submit reports to the Commission onHuman Rights regarding concrete actions they have taken t o respect,protect and firlfill the rights of the affected community in Didipio,witlin 3o days from receipt of tlis resolutionl

3. Request the same agencies to contiuue monitoring tle human rightssituation in Didipio with the view in mind that all reports of violationsbe verified and acted upon;

4. Advise the OGPI to consider the findings above and conduct a policyre-orientation on the conduct of mining operation taking into

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(ONLEAVE)

CECILIA RACIIEL V. QUISI'MBINGCommissioner

MA. VICTORIA V,CARDONA

conscious account the observance of human rights of the communityinvolved;

5, Direct the CHR Region II offlce to actively atlvocate for the humanrights of the affected community and to take every step possible toavoid the occurrence of further violence ancl oppression'

SORESOLVED.

Done this roe day of January zorr, Quezon City, Philippines.- c . \ r \

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LORETTA ANN P. ROSALESIChaimerson )#r

'u- q.A 4/.+

O-MARAVILLA

ATTESTED BY:

AST'NCION I.Comniission Secretary