Commission on Human Rights of The Philippines (CHR) - RESOLUTION ON DISPLACEMENT COMPLAINT OF RESIDENTS OF DIDIPIO, KASIBU, NUEVA VIZCAYA V. Oceana Gold Philippines, Inc. (OGPI)

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  • 1. ,ffiu Y/ Repu ha ng ii li1. s bli int Koatr!*yr3(, i?g fi.arorprxtai.ftS tra*lta@ rirg Filipiraas (Cantmissioit Hutran Righx aftha Phihpf inas) onIN RE: DISPIICEMENTCOMPIIINT OF R-ESIDEI|ITSOFDIDIPIO, KASIBU, NI,EVAVIZCAYA- [CHR-H-zoo8-ooSs(sPL. REPORT) lx----------:----_________-_x RESOLUTION CHR(IV) No.Aaofl-oo4 The ultimate goal of economicdevelopmentis to raise the quality oflife of cll people.To this end, the Statepromotesthe firll and efficient useofits human and natural resources encouraging by private entities to invest inkey industries and business enterprises. However, when private entitiesviolate the fundamental rights and entitlements of the people in tle nameof economicdevelopment,they not only losetleir moral legitimacy * theyalso defeatthe very purposefor which they were given authority to conductbusiness. The present case is a classic aad lamentable example of howeconomicaggresslon denigratesthe most basicof humaa rights. This caseis 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 governmentof the Philippineshas entered into a Financial and TechnicalAssistanceAgleement (FTAA).Severalresidentsof Didipio objectto the large-scalemining in their areaonaccount ofperceived adverseeconomicand environmentalimpact that suchactivity would cause to their community. Majority of the residents in r,rtDidipio 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(Commissionfor brevity) aflegingwidespreadand systernaticviolations ofhuman rights committed by OGPI and the security sectoragainstresidents .: .]opposed to large-scalemining. The tense situatjon in tle area has notabatedand seemsto be only getting worse. In furtherance of its commitment to protect and promote humanrights, and pursuart to its mandateto investigateviolations thereof as well I*!rapatang Pr!otao: Likas SaAtln, ?ungkulin Natin Cantur,,lt"althArenue,(l.P Ca jplex,Dilnnau ll0l,
  • 2. as mouitor compliancetlerewith, the Commission took cognizance this ofcase,After a thorough review of all the information and documentsgathered, Commission the finds that, indeed,humanrightsviolationswerecommitted against indigenous the peoples inhabitingDidipio. , TITE REIVANTFACTS On 24 June 1994,PresidentFidel V. Ramosenteredinto a FTAAwithArimco Mining Corporation (AMC) for the exploration, developmentandutilization of minerals located in about g7,ooo hectaresof land situated inthe provinces of Nueva rizcaya and Quirino. Included in this area isBarangayDidipio in Kasibu,NuevaVizcaya. On 03 March 1995,PresidentRamossignedinto law RepublicAct No.7942 otherwise known as the Philippine Mining Act of 1995.Someof theprovisions of saidlaw which are most relevantto this caseare the following: Sec.75 EasementRights. When mining areasare so situated that for purposesof more convenientminiug operationsit is necessaty to buil4 construct or install on the mining areasor lands owned, occupiedor leasedby 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,teiephoneor ielegraph lines, oalrs and &eir normal flood and catchmentareas,sites for water wells, ditches, canals, uew river beds, pipelines, flumes, cuts, shaffs, tunhels, or mills, the contractor, upon pa]ment of lrst compensation,shall be entitled to enter and occupy said mining areasor lands. Sec.76 Eritry into Private Iands and Concession Areas.Subiectto prior notification, holders of mining rights shall not be prwented from entry into private lands and concessionareas by surface owDers, occupants, or concessionaires wben conducting mining operations therein: Provided That any damage done to th6 properly of the surface owrcr, occupan! or concessionairc a as consequence such operationsshall be properly compensated of {, as may be provided for in the implementing rules and regulations: Provided f,uther, That to guamnteesuchcompensation, penouthe ,F- ^, authorizedto conduct mining operation shall, pdor thereto, post a bond with the regionaldirector basedon the type of properties,the L5 prer,ailing prices in and around the area-wbeG tie minins AJ .jt operationsare to be conducte4 with suety or suretiessatisfactory to the r€gionaldirector. & T( I On $ August 1995,the Departmentof Environmentand Natural qResources (DENR)issuedthe Implementing (IRR) Rulesand Regulationsof R..d No. 7942throughDepartment AdministrativeOrder(DAO)No. zg,seriesof r99S. This was superseded DAO No. 96-4o, seriesof 1996. byPertinentto this case tle followingprovisions saidIRR: are of Section106.Voluntary Agre€ment f,
  • 3. A voluntary agrcement between a surface owner, occupant or concessionaire thereof permitting holdeN of mining dghts to enter into and use its land for mining purposesshall be registeredwith the concerned RegionalOffrce.The said agreement shall be binding upon tfre parties,their heirs,successors-in-interest assigDs. alld Section1o7.Compensation ofthe SurfaceOwnerand Occupant Any damagedoneto the property ofthe surfaceown€r,occupantor concessionarre thereoi as a consequence the mrmng operauons ot or as result of t]le construction or installation of the inftastructure mentioned in Section 1o4 above shal be property ald justly compensated. Suchcompensation shall be basedon the agreement entered into betweenthe holder of mining rights and the surface owner,occupantor concessionaire thereofor, whereappropriate,in accordanee with P.D.sp. In caseof disagreement in the absence or of an agr€ement ttre matter shall be brought before the Panel of Arbitxatomfor proper disposition. In late 1995,AMC consolidatedwith Climax Mining.Limited to form asinge company named Climax-Arimeo Mining Corporation (CAMC). InDecember1996,CAMCtransferredall its rights to the FTAAto AustralasianPhilippine Mining, Incorporateal(APMI), which transfer was approvetlbythe DENR nine yearsafter in December2oo4. On rr Octoberzoo5, t}te DENR issuedan Order approvingtle PartialDeclaration of Mining Project Feasibility for tle Didipio Gold/CopperProject. Saidproject is coveredby the FTAA held by APML In Decemberofthe same year, APMI launched a "Surface Rights Acquisition" (SRA)Programto enter the lands within the Projectarea. On 3o March 2006, the SupremeCourt issueda decisionon the caseof Didipio Earth SaversMulti-Purpose Association (DESAMA), et cl vs.Go rn et cl. upholding the constitutionality of the "taking" provisions ofRd No. 7942 and its correspondingrules and regulations.The dispositiveportion of the decisionreads: "WHEREFORX, the instant petition for prohibition and i- rncndcmus is hereby DISMISSED.Section76 of RepublicAct No. 7942and Sectionloi of DAO 96-40; nepubiic ect N6. 7942and its r.t" Implementing Rules and Regulationscontained in DAO 96-40 - Il), insofar as they relate to financial and technical assisrance L; agreements retbrredto in paragraph4 of S&tion z ofArticie xrt ot j;i the Constitution are NOT UNCONSTTTUTIONAL. SOORDERED." iili t "{t O 1June2oo7APMI changed nameto OGPI; its In June 2oo8, reports and complaintswere filed with the CHRalleging that OGPI had illegally ard violently demolishedsome r87 houses
  • 4. ordersof demolitionfrom the court,unaccompanied tle Sheriff,without by paymentof just compensation, witlout providingalternativeoptions and for relocationand resettlement. Theseclemolitions werereportedto have been attendedby unnecessary violenceand destruction:residentswho resistedand triecl to savettreir homeshad beenbeaten,including their neighbours who helpedthem; houses beenbulldozed eliffs and set had off on fire. It was further allegedthat OGPIfencedoff large sectionsof the roadsand pathways which communityresidents haverelied upon for the past 30 yearsto transportpmducefrom their farmsto the market,It was also reported that OGPI has set up checkpoints around the Barangay, causing tlem difficulty in movingabou! resultingin the unjust restriction of t}reir socialand economic activities.Moreover,it was allegedthat the PNP-Regional Mobile Groupserves a "private securityforce" of OGPI, as with their officersbeingstationed insidethe facilitiesof tle latter. While the CHRwassilentlyinvestigating monitoringthe matter, and reportsaboutalleged harassments incidentsof violenceagainstthose and who stronglyoppose mining operations the kept persisting, The situation reacheda critical point on 02 Octoberzoog when,during an attemptto demolishseveralhouses,more than one hundred membersof the PNP allegedlyused tiuncheons,shields and tear gas to disperseprotesting residentsfrom demolishing houses their neighbors. the of Reportssaid,the Mayorof Kasibuandthe Barangay Chairperson Didipiowereincludedin of those who were violently dispersed. This incident prompted the Commission give priority to the settlementof human rights issuesin to Didipio. On o5 November2oo9, tle Commission,led by no less than Chairperson LeilaM. de Lima,together with Commissioner ManuelS. Jose Mamauag, AttorneysRobertAlcantaraand GemmaParojinog,and other officers from CHR Regionz Offrce,conductedan ocular inspectionof Didipio to seefor themselves couditionin the area. the Accompanied the by Mayor of Kasibu,NuevaVizcaya,and other local offtcials of Barangay Didipio, the Commission took a three-hour drive from Solano.Nuela Vizcaya the impactarea.Uponarrival to Didipio,the Commission at to was i: first refusedentry by securityofficerswho lookedlike soldiers.After the securityofficersfinally got a go-signalfrom ttreir radio,the securityofhcers allowedthe teamto pass.Members the teamheardthe securityofficers !i- of i: say,"mga toga-munisipryo yan " Whenthe teamidentifiedthemselves L lang as officers of the Commission Human Rights, the security ofEcers became moreaccommodating on $ towardsthe teamandwen escorted themto the affectedareas.The team then went to inspectt]le entire impact area, including the proposed site of damsfor mining purposes shortage cleanandsafewaterfor domestic irrigationpurposes. of and fearedto cause $ "* Thenext day,the teamconvened PubicDialogue a with the objective of understandingthe controversyfrom all perspectives. Said public Dialoguewas attendedby officersof OGPI,PNP officials,LGU officials. representativestheNational of Commission Indigenous on peoples (NCIp),yr9ry
  • 5. and NGO and communityleadersand members.During the Dialogue,OGPIwas givenall opportunityto address aneryallegationcastat them.Likewise, the police was allowed to explain its participation in thecontroversy, including the October oz dispersal. The Commissionrequestedfrom tle participantsall pertinentdocuments remrclsthat andwould havea bearingin the determination the human rights issuesin ofDidipio.The stakeholderscompliedseveral daysafter the PublicDialogue,submittingvoluminous recordsand documents supporttheir positions. toMuchof the documents came from OGPIandthe NGOs. IIIE HUMAN IIIGITTSIssUEs Various issueshave muddled the controversyin Didipio. In fac!numerous criminal, civil and administrative caseshavebeenfiled left andright, all of whichhavefor their root the mining operations the area.In inaccordancewith international norms, standards and principles, theCommission resolved address followinghumanrightsissues: has to the I. WIIETHER NoT OGPI VIoIAIED THERIG}ITTo ADEQUATE oR HousING ANDPRopERTyRIGltrs oF SEVERAL RESIDENTSDIDrpro; rN il. WHETHERoR NoT OGPI 1IoI,ATEDITTERIGHT To FREEDoMoF MoVEMEM AND THE RIG}TTNoT To BE stB.IEcTED ARBITRARY To INIERFERENCEWITH THI HOME OFTHE PEOPLE DIDIPIO: IN III. WHETHER NoT OGPI IIoL{IED THEfuGIIT To SECURTTY PERsoN oR oF OFTIIE PEOPLE DIDIPIO; IN ry. WHETIIER OR NOT OGPI VIOLATEDTHE INDIGENOUSCOMMUNfftS RIGHTTo MANIFF,ST UIEIR CULTURE AND IDENTTaT V. WHETHER oR Nor OGPI vrorarED Tr{E fuGHT To WATER oF firE reoeLn Dutto; and w ; VI, WHETHER oR NoT THE PNP 1IoIATED ITs owN oPERAfioNAL PRocEDuFss DURINGTHEOcroBER 2 INCTDENT. i,{ {q Theseissues shallbe addressed senotrm. in c TI{E FIIYDtrYGS $ { I. OGPI IoLATED fllr RIGII] TO RESIDEIYCE, TIIE RIGHT To ADT4UAIE IIOUSING AND PROPERTY RIGITAS OF SFYERAL RESIDENIS TN DIDIPIO. TheRightto Residence, Rightto Mequate HousingandprotectionofPropertyRights are well recognized botl internationaland domestic in
  • 6. laws. Article $ (1) of the Universal Declarationof Human Rights (UDHR)statesthat "everyonehas the right to fteedom of movementand residencewithin the borders ofeach State."This declarationofthe Right to Residenceand Freedomof Movementis reiteratedin Article rz (r) of the InternationalCovenanton Civil and Political Rights (ICCPR)which provides: "Everyonelawfully within the territory of a State shall, within that territory, have theright to liberty of movementand freeclomto choose residence." his While many international documentsl recognize the Right toAdequate Housing, Article rr (r) of the International Covenant onEconomic,Socialand Cultural Rights (ESCR)is consideredto be the most provision.r Saidprovision reatlslrelevantanil most comprehensive The States Parties to present Covenant recognizethe right of everyoneto an adequatestanilard of living for himself and his family, including adequatefood, clothing ard housin& ard to the continuous imprcvement of living conditions. The States Parties will take appropriatestepsto ensurethe international co-operation basedon free consent(emphasis adileil.) " The Committee on Economic, Social and Cultural Rights (CESCR)issued General Comment No. 4 on Mequate Housing and GeneralCommentNo. 7 on ForcedEvictions,elaboratingon tbe normative contentsof the Right to Adequate Housrng.According to the CESCR, Right to theAdequate Housing should not be interpreted nilrrowly to mean having aroof on oneshead, Rather,it should be seenas the right to live somewherein security,peaceand dignity, in conformity with the inherent dignity of.thehuman person.3 It can be gleaned from the aforementioned GeneralCommentsthat the Right to AdequateHousing contains severalfreedomsand entitlements. These freedoms include: protection against forcedevictions and the arbitrary destruction and demolition of ones home; t]teright to be free from arbitrary interference with ones home, privacy andfamily. On the other hand, tle entitlements include: security of tenure;housing, land antl property restitution, equal and nondiscriminatoryaccess adequatehousing; and participation in housing-relateddecision- tomaking at the national and community levels.a |,,tt The right to property, on ttre other ha:rd, is well entrenchedin our d"Constitution. Article III, Section r of the 1987 Constitution unequivocally {.i-:states that "[n]o person shall be deprived of his life, litr:rerty propertg or ,.jwithout due processof law xxx" (emphasiscdded). Likewise, tht Civil I I A-sindicated CESCR in cenemlConm€nt 4, See No. article25 (l) ofrhe UnivenalDeclaralion Hurnsn on Riehts. *r -t!anicle5 (e) (iii) ofthe lntemalionalConvention theElimination on ofAll FontrsofRacialDiscrimilarionarticie14 ;l .- <$(2) of the Codventiod the Elimination All Formsof Discriminajion on of Wome&artiole22 (3) of th€ againstConvenliotr drcRights on oflhe Chil4 aticle l0 ofthe Deolahtion Sooial on prcgress Developmen! and s€ction III(8) offte Vadcouver Declamtion Human otr Settlehe !, 1976 (ReLort ofHabit* Unit6dNations Confer€nce onHuman Settlements (JnitedNdtions publication, Sales E.76.IV.? conigendurn), D, article8 (t) ofthe No. and chap.Declaration theRightio D€v€lopment theILO Recommendatiotr on and ColcemhgWo*ers,Housing, 196l CNo._l l5).l CESCR CESCR General Coffment 4, Pdragraph No. 3. CeDeral Conmeot No.4. Paragraph 7 Seegenenly CESCR cenaal Comment 4 andceneralCotnment 7; OHCH& TheRightto Adequate No. No.Housing, Sh€€t 2l&ev.l (2009). Fact No. (u
  • 7. Codeof the Philippinesaad Rulesof Court providefor other importantlegalframeworkthat guarantees protects Rightto Property. and the OGPIviolatedtheserightspertainingto several Didipiosresitlents ofwhenit forcefirllywicted them in contravention existinglaws,rulesand ofregulations. Evidenceobtained the Commission by indicatethat OGPIhascausedthe demolitionof at leastonehundrerlandeighty-seven (r87) houses the ofindigenousresidentsin Didipio. Said demolitionswere done uithout acourt order and ruifhoutprovisionfor adequaterelocation, requiredby aslaw. This wasreadilyand categoricallyadmittedby Mr. Ramoncito Gozar,OGPIs VicePresident Communications ExternalAffairs. for and In defense,OGPIclaimstlat its conduct lawful.It interposes (1) is itsright of immediateentry aad (z) right to exercise power of eminent thedomaingrantedunto it asan FTAAholder,underSection on Easement 75Rightsand Section76 on Entry into PrivateLandsAreasof the PhilippineMining Act of 1995, relationto Section in ro4, Sectionro5, Section and ro7Sectionro8 of its IRR. This right, OGPI claims,was recognized the bySupreme Courtin DESAMAus. Gozun. Precisely,in DESAMAef ol vs. Gonrn et al, the SupremeCourtclassified Section andSection of the PhilippineMiningAct as"taking" 75 76provisions, justified by Statespowerof eminentdomain.While suchpowermay be invokedand effectively exercised privateparties(i.e, holder of bymining contracts suchasOGPI),in cooperation with the State,the remedyis sfill to file expropriationproceedings and securethe necessary courtorder.OGPImaynot demolish "take"tle residents and properties, withoutfirst complying witl the requirements law and dueprocess, cannotbe of Itgainsaid that underour laws,demolitions mustbe donepursuant a court toorder. There being none, OGPIsconduct is patently unlawfirl and inviolationof the residents right to properlyanddueprocess. ;j"i A closer examinationof the DESAMADecisionwill reveal thatindeed,expropriationproceedings the properremedy case resident are in arefuses enterinto a voluntaryagreement to with a mining contractor.The {t;,:"Sunreme Courtsaid: L "An examination of ttre foregoing provisions gives no indication ij that ttre courts are excluded from taking cognizance of ..1. expropdation cases under the mining law. The <iisagreemenr. 1? }, refened to in Section1o7doesnot involve the exerciseof eminent dom,ain,rather it contemplatesof a situation wherein the permit "-d) fol{ers ary allowed by the surface owrers enty into the l-atters, lands and disagreemgnt ensues as regarding the proper compensationfor 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"5DESAMA al vs.cozunera,/, s, c.R No. 157882, March2006. 30
  • 8. This pronouncement t]le Supreme of Court means tlat Sectionro7 of the IRR, in relation to SectionT6 of the PhilippineMining Act of 1995,only applieswhen the surfaceownershavealreadyenteredinto an agreementwith tle permit holder,tle only controversy beingtle amountto bepaid asjust compensation. doesnot applyin cases It wherethe surface ownersdonot agreeto allow permit holdersentry to their lands.In suchcases, theproper remedy would be for the permit holder, by itself or with theassistance the State,to institute an expropriationproceeding the of inappropriatecourt, as providedunder Rule 67 of the Rulesof Court andrelevant jurisprudence. Further, the Commission takesparticular note of OGPIsapparentscheme "demolishnow, negotiate of later." This scbeme problematigto issayt}releast,asit pushes residents against wall.Those up tle whosehousesweredemolished without their consent - someevenagainsttheir expresswill - are now forcedto take the petty sum OGPIoffersin exchange fortheir homes and their lives in Didipio. The residentswere reducedtoaccepting OGPIs offerandsuccumbing thelattersunlarfrrl ploy.Worse, toa numberof residents werenevercompensated all. at While it maybe true that aboutseventy-frve (ZS%) the resitlents of inDidipio havealreadyenteredinto a voluntaryagreement with OGPI,thereis still a considerable numberof residents tlat has not enteredinto suchagreements. OGPIpositsthat muchof thesepeoplearenot reallyowners ofthe land theyoccupy. Assumingwithout conceding, thesepeople that werein fact illegal settlers,this doesnot give licenseto anyone,much less aforeign-owned corporation,to mistreatottrers,in violation of &e dignitytlat inheresin everyhuman. Evenin thoseinstances whereevictionand demolitionarejustified,internationalhumanright normsrequirethat theybe "carriedout in strictcompliance with the relevantprovisions internationalhumanrights law ofand in accordancewith general principles of reasonableness and {rproportionality."e "Evictions should not result in individuals being - / Uiirendered homeless vulnerable the violationofother humanrights."z or to fi. As tlis Commission has advisedpreviously demolitionsmust be lv:conducted ain just and humanemanner.Certainly,in someinstances,dgmol$ons may.be,legally justified. However,in no instance, legally oi ijotherwise, the deprivationof onesshelterbe donein a manier that can wrobsa person his digniry.a of $ 3 - FIAAs grart unto its holderthe Statesblessing undertake to miningand other exfiactivevenhues,and all its necessary incidents.within its CESCR Ce4eral Cormeff No. 7, Paragraph 14.I -ad, Paxagraph f6Commissiono[ Humanfughts,Advisoryon the Codduct Forced of EvictioN andHouseDemolitions May (062008).
  • 9. patrimony.It is not carfe blanche the wholesale for denigrationof humanrightsof peoplewhostandto beaffected saidundertakings. by II.OGPI vror-arED TrrE RrGHT To FhEEDoM oF MoVEMENT AND firE RIGHT Nory To BE SUBJECTED AnBITRARYINTERFERDNCE To wTuT IIIE HOME OFTHBPEOPLE DIDIPIO. IN Closely related to the abovementioued rights are the Right toFreedomof Movementand the Fjght Not to be Subjected Arbitrary toInterferencewith OnesHome. TheUDHRexpressly declares theserightsin tle followingmanner: Article 12 No one shall be subjected arbitmry interferencewith his privacy, to family, home or correspondence, to attacksupon his honor and nor reputation. Everyonehas the right to ttre protection of the law againstsuchinterferenceor attacks. Afiicle 13 (r) Bveryonehas tfie right to fteedom of movementand resi<ience within ttre bordersof eachstate. The ICCPRreiteratestheseprovisions,to wit: Article rz r. Overyonelawfully within the territory of a State shall, within that territory, havethe right to liberty of movementand fteedom to choose residence. his Article r7 No one shall be zubjectedto arbitrary or unlawfirl interference with his privacy, fanrily, home or correspondence,nor to unlawftrl attackson his honor aad reputation. 2. Ereryonehasthe right to the protection of the law againstsuch interferenceor attacks, (r i 1 In its GeneralCommentNo. e7 on Freedomof Movement,tle t,,HumanRightsCommittee (HRC)clarifiesthat Article 12(1) of the ICCPRentitles personsto move from one plape to another and to establishthemselves a placeof their choice. in Theenjoyment this right mustnot of Ibe made dependenton any particular purpose or reason and any t-1i +Jrestrictionsthereofmust be in strict conformitywith laws Moreover, tleHRCpointed out the obligationof Statesto ensurethe protectionof theRight to Movement not only from public but also from privateinterference.to HRCalsostatedtlat right to residein a placeof ones Thechoicewithin the territory includesprotectionagainstaUforms of forcede^HRC GeneralComme0t 27. Psragaph5. No."14, Paragraph6.
  • 10. internal displacement. It also preeludespreventing tle enUy or stay of personsin a definedpart of the territory." On the otJrer hand, the HRC elaborated on the Nght Not to be subjected to fubitrary Interference with Ones Home through General Comment No. 16. According to the HRC, this right is required to be guaranteedagainst all unlawful and arbitrary interferenceswhether they emanate from State authorities or from natural or legal persons.o Furthermore,tle HRC statedtlat tle prohibition on arbitrary interference is intended to guaranteetlat eveninterferenceprovided for by law should be in accordance witl the provisions, aims and objectivesof the Covenant and shouldbe, in any event,reasonable the particular circumstances,u in The bundle of property rights guaranteedby domesticlaw also finds relevanceon this instance.Article 428 of tle New Civil Cod statestlat "tle owner has the right to enjoy and dispose of a thing, without other limitations than those established by law." The right of ownership necessarilyincludes, among others,.7us utendi (ight to use the property), jus ft-uendi (right to enjoy the property) and. jus disponmdi (right to disposeof the property in whicheverway the owner seesfit). Homeowners havedominion over tleir houseswhich they have a right to enjoy and to do as they please,evento spoil or destroyit asfar asthe law permits.r4 OGPI violated these rights of the people in Didipio when they introduced perimeter fences around the Project Area and set up checkpointsat their chosenentry and exit points. Theseperimeter fencei blocked off the roadswhich havebeen customarilyusedby the residentsas pathwaysfor their easyingressand egressto the community. Furthermorg th9 chgckpoilts causearbitrary interferenceto the firll use and enjoyment of tle housesby tle residents. In defense, OGPI claims to have introduced tle perimeter fences merely to p_rotectits Project fuea flep rrntnryful elements and illegal settlers. It further asserts that it has been autlorized by the Barangay -.;. Council of Didipio as well as by tle DENR to estabtsh the checkpointsto guard againstcontrabands. ii rl , I !, - Ihe authorization given to OGPI by the BarangayCouncil of Didipio , only relatesto the liquor ban. On the other hand, the authority comingfrim J;I a.9 the DENR is only in respectof arresting illegal logging and illegal mining. Certalnly, OGPI cannot use tlese authorizitions tol*tify G arbitra;, .1.. interferenceto the enjoymentof the rights of the residentsofnidipio. OCfi IJ tl x should have deviseda mechanismthat avoids unnecessary incoivenience to the residenceat the sametime that it servesthe purpoie of prohibiting x illegal activities. " 1d, Paragraph 7. : HRCCeoeral Comment 16,Paragraph No. i. " Id., Par?graph 4. Flenming Sherwoo4 vs. 139N.W. 101, pac. JotrsoD Crookshankr,29 ZB. vs. L/t ^-/r ol v<: 10
  • 11. The Commission also observes that the Derimeter fences wereintroduced in consciousdisregardof the rights of the residentsof 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 audtransparencyif it really intended to respectthe rights of the residents inDidipio. III. OGPI vrollrrED TrrE Rrcr{r To SEcnRrry oF PERsoNoF firE PEOPLE IN DIDIPIO. The security checkpointssituated along Didipios main road andaroundthe perimeterof the ProjectArea are m.anneil OGPIsprivate bysecuritypersonnelopenlycarryingarms,therebythreatening members of&e community. Membersof the PhilippineNational Police-Regional Mobile Group(PNP-RMG) Nuera Vizcala and Quirino were alsodetailedin Didipio. ofLocal residentsof Didipio, however,report that insteadof frrlfilling itsmandate maintainpeace order in the community,saidmembers to ancl ofthe PNP-RMGact as if they were the private security for OGPI, in -abrogation their swornduty to serve piople in trust. of the Likeruise, unlawfrrldemolitions ttre instance OGPIwerealso the at ofmireclwith violence.For example, during the demolitionconducted zzonMarch 2oo8, local residentEmilio Pumihicwasshotwhenhe tried to stoDthe demolitioncrew from dismantlingthe houseof his neighborManueiBidaug.Bidangwas then taking a nap inside said house.Accountsfromneighbors who witnessed shootingincident statethat Emilio pumihic thewasrestainedby two (z) of OGPIs security while a third - later personnel,identified as Whitney Dongiahon - shot Pumihic at close range while ii Pumihicwastrying to free himself.The bullet piercedhis upperright armand exitedthroughtle upperright part of his back.the shootingincidentoccurredin plain view of membersof the Philippine National police. r;"1 fi.Despitethis, said WhibreyDongiahon was not apprehended. Thesefacts | i.,-wereattested by Mr. Pumihichimself,and several to otherswhowitnessedtheincident. i;i Other membersof tle communitywho stronglyopposelarge-scale :15 tmining operations are constantly threatened by violent demolition.Me-anwhile, leadersof the oppositionistswere criminally chargedwith ."{3violations theForesby of Code. This stateof affairsin Didipio constitutes continuingthreat to the asecurityof personsof the peoplein Didipio. It e4roses tlem to constantuncertainty- to an incessant that something fear untowardmight happento them, their.family or their properties.Rightly so, the local governmem ll
  • 12. units in t}te areaeqnessedgraveconcerns tle situationwouldleadto that breakdown peace orderin the province. of and OGPIis largelyresponsible the continuingthreatsto securityof for persons,given that it controls and supewises actionsof its security the forces, that tle unlawfuldemolitions and wereconducted its behest. at IV. OGPI VIoI"ATED THE INDIGENoUS CoMMUNnYs RIGHT m MANIFESTTITER CI,IUREAND IDENTUY. SinceDecember zoo7,OGPIhascaused demolitionof at leastone the hundred and eighty-seven (r87) housesin Didipio. Over and abovethe ilegality of subh conduct, this demolition resulted in the forced displacement at least one hundred eighty-seven of (r87) families who consider thesehouses their home.Majority of whom wereforcedto leave Didipio for good, and abandontheir indigenouS community,customs, traditionsandwayof life. Certainly,the impact of OGPIsdemolitionsis irreducible to the physical dismantling ttreresidents of houses.Demolitionandthe attendant displacement indigenous of peoples effectivelydenysaidpeoples right the to enjoy and manifest their Ifugao culture in community with other members of their incligenousgroup, It means the dislocation and displacement women,men andchildren.It means destruction life of the of anda uay o/ft/e intimatelyconnected with the land they nurhued,wi& a viewto leavinga legacy their childrenandtheii kin that will comeafter. for Thus,the Commission finds that OGPIsdemolitioncontravenes the rights of indigenouspeoples underArticle z7 of the Covenant Civil and on PoliticalRiglts, whichguarantees indigenous peoples right to manifest the and enjoy their cnlture,both individually and ii commuiitg with other il members their group.Article r of tle UnitedNationsDeclaration the of on Rightsof IndigenousPeoples ("UNDRIP) further guarantees indigenous peoples right to ttrefirll enjdyment all humanrightsandfundamental i the of ilf, freedoms, individualsand cs o coLlectiue. corollaryobligationthus as The rr i: consists in ensuring the survival and continued developm6ntof the {. cultural,religiousand socialidentity of minority groups, thui enrichingthe fabricof society a whole.u as t$ d- _ In.demolishingthe houles of indigenous peoplesin Diclipio,OGpI { effectivelyprecludedthem of the right lo enjoy, manifestand ceiebrate -.h their. culture in c3r-nmulity_withtheir indigenous$oup. It irreparably impairedthe conditions which the Ifugaosof Didipio,in trarmoirywitir by tleir land aad eachotler, previouslypricticed Ifugio culture,traditions andwayoflife. H.k Coo,JJ-., /Add.s (1994),palggr[ph 9. Gen*al Conmen No. 23 u N.Doc CCpR/c/Rev.lr , /!t 6@:-
  • 13. V. OGPI MUST EXDRCISEGREAT OuIIoN IN EXPI,oITING TIIE WAIER REsottRcE DIDIpro, posslBr.y ENDANGERTNG Comuurrrys oF rHE FTNDATTENTAI RIGHTTOAccESS CI.EAN To WATER. The Right to Water entitles everyoneto sufficient, safe, acceptable, physicallyaccessible affordablewater for personaland domesticuses.o and The CESCRGeneral Comment No. rS is the first document that defined the rigbt to water. In this document the Committee emphasized that while there is no explicit mention of aright to waterin the ICESR,the right to water is indispensablylinked to the right to adequatestandard of Iiving (Article rr) antl the right to the highest attainable standard of health (Article rz). Furthermore, the Committeeexplainedthat the right to water is essentialin the fulfiIlment of the right to life and human dignity. And while there is no explicit mention of the Right to Water in the UDHR, ICCPRand ICESC& the samehas alreadybeen recognizedin many other treaties, declarations and international documents. For instance, Article z4(z) of the Conventionon the Rights of the Child requires Statesparties to combat disease anil malnutrition "through the provision of adequate nutritious foods and clean drinking-water." On the otler hand, Articie r4 (z) of the Convention on the Elimination of All Forms of Discrimination against Women statestlat women shall have the right to "enjoy adequate living conditions; particularly in relation to... water supply."-The Geneva Converrtionson .International Humanitarian l,aiv require combatants to provide drinking water to POWs and civilians stranded in the armed conflict(GCIII Articles 20,26, 29,46; Ap II Article S (r)), and evenmake the destruction of drinking water installations anclirrigations punishableas war crimes (AP I erticle 54 (:), AP II Article r4).z - AII doubts as to the legal existenceof the Right to Water were finally settled when tle UN GeneralAssemblyadopted Resolution64/L.6g on zB July eoto declaring "the right to safe and clean drinking watir and saaitation as a human right that is essentialfor the full eniottrent of life and all human rights." Ttrus, the Right to Water is now idlntified as a distinct human right. *1, - -Paragraqh,rr o{ CESCRGeneral Comment No. $ emphasizesthe broad scopeof the-Rjght_toWater and puts in place a generalstandardby /as which to measurethe fulfillment of such a right: tx l,; [. "The.elem- of-the right to water must be adequate for hnnfin €nts .,tJ p dignity, life and health, in accordancewith Articles ll(r) and rz. +t CESCR GederalConlaent 15. No. ".other docr*Jrts thatrcferto tlrc right to waterincMe the following:theconvention theRightsof po^ons otr wtthDisabilitiesi Aficatr charteroD$e Rights welfareoflhe cfild; tie pmtocolto theAriica! charteron s the and turtrafl aooreopresRigr,ts tbetughtsof womenin Aftica; unitedNations otr Economic cormissioufor Europe (JNECE)Protocol wateraM H€alth; on Agadda adopted theudted Nations 21, st conferenco EnviroDdent od and Development cJNcED); tha Mar del plataActionplan;theprog.EmeofActior ofthe hteaationalconfercnc€ g.Pqp{aqo! a4 Development; UN-Habitat The ptaa of A9tion; anddle variousR€solutions adoptcd the by United NationsCeneralAssombly theConmission Human and otr Rights, well asotheroxDert as alocumonts. I /- .------.--,tt 13
  • 14. The adequacy water shouldnot be interpretednarrowly, by mere of referenceto volumetric quantities and technologies. Water should be treated as a social arid cultural goo4 and riot primarily as an economicsood,lhe manner of tJrerealizationof the rieht to water -be must also sustainableensuringtlat the right can b;realized for presentard future generations."8 Paragraph further identifiesthe threecommon rz elements factors or tlat aresaidto applyuniversally all circumstances: in auailabilitA,qualitA and accesshilw,re lhe absenceor diminution of any of tlese three elements translates a violationofthe right to nater. into Auailabilitymeans therehasto be a source that wherepeople get cansufficient quantity of water for their personaland domesticuse. Thisincludes water for drinking, personal hygiene, footl preparation andcooking,washingof clothes,and household sanitation.Not only shouldtherebe enough waterto meetbasicdailyneeds, the supplyshouldalso butbe continuous regular. or Quclirg meansthat water must be safe- it must not threatentlehealthof thosewho useit, Thus,watermustbe ftee from microorganisms,chemicalsubstances radiological and hazardsthat cause humandiseases.Moreover, waterscolor,odorandtastehaveto beacceptable. the Accessibilifumeans that water and water facilities and servicesshouldbe alailableor accessible anyone, to without discriminationof anykind. It has four aspects: 1) Physical Accessibility; z) EconomicAccessibility; Non-discrimination; 4) InformationAccessibility. 3) and As for domesticlaw, PD to67 alsoknown a$the Water Codeof thePhilippines givespriority to ensuringwatersecurityfor domestic purposes.Article zz of saidlaw niovides: Art 22. Betweentwo or more appropriatorsofwater from the same :1 sourcesof supplg priority in time of appropriation sball give the "i. better right, excepttbat in timesof emergencg nseof witer for the domesticand.municipal purpses shall hauea better nght ouei all otfter uses;Provided,that whercwater shortageis recurint and the ftl appropriator for municipal use has a lowei priority in time of f !i" appropdation,then it shall be his dutv to find an alternativesource o-fsupply in acco_rdance conditions prescribedby the Council (enphasis addeil). with r$ Jri The collectivity of tlese norms establishes two key points: (r) a :g :srecognitionof the right to water as a distinct human righ! and (2) anacknowledgment the States obligation to ensure the security-ancl ofavailabilityof safeandcleanwatersupplyfor domestic purposes.t: CESCR GeieralConnentNo. 15,paragtaphl. I" CESCRG€neralComeent 15,Paragmph No. 12. t4
  • 15. Althoug! thereis asyet no breach a right-dutycorrelative, is with of it great cautiontlat OGPIshouldproceedwith its plan of diverting water flowing through.the Tubo Creekand the DinauyanRiver - the Diilipio communitys primarysources water- to facilitateits miningoperations, of as the same posesa serioustlreat to the quantity and quality of the T communitysryater resources. In termsof guanfitg,giventhe immense volumeof waterrequiredtoprocessmineral ores,there is no certainty that an amount sufficient tosustainthe communities their day-to-day in domestic agriculturaluses andshall be left. The local communitiescould ill-afford a warer resouroe-intensive indusby such as mining competingwitl tleir domesticandagriculturaluses,especially in light of the swereandprotracted so drought(El Nrno) the province recendysuffered has from andis predicted suffer tomore frequenflyin the future because climatechange. Commission of Thealsonotesthat the provinceof NueraVizcaya specifically was identifiedbythe Department Agricultureas being particularly"vulnerable"2o of to.theeffectsof El lVino.2r such,cleanwater As - scarce it is - is boundto get asmuchscarcer.o In terms of qualitg, contaminateddischargesfrom the mineprocessing plants and tailings pondscould seepinto the river systemsinthe areavihichcouldcause human,aaimalandenvironrnental hazardsthatwould eventuallyrender the water unfit for any and all uses it hastraditionallybeenusedfor.,s OGPI is thus advised to exerciseprudence and extraordinarydiligenceshould it utilize ttre Didipios water resources, lest it violateDidipiosindigenouscommunitys humanright to *ater. VI. TTx PNP !IoIATED ITs owN OPERAnoNAL PRoCEDI,RES DTJRING fiIE OCTOBER 2 INCTDENT BY CARRYING HTGF.FOWERED FIREARIUS AND BY APPLYING UNNECASSARY AND TJNRX,ASONABLE FORCE. "";r ,t_i The PNP Manual on Police Operational Proceduresprovides for n.t_ ,standard operational conduct for tle police in general and special rl!procedures.Rule r9 thereof treats the standard procedure in Demotition .r."i _.1)o To be "lulnqtabl6"idplies s sceptibility but imbility to copewitfr,c6.tainadvolse to, (i.e. impacts ltat ofEl SJNiDo)lFounbQuar.erly Report ofthe tnteBovernmental onClimare PmeJ" D-4 lrcs! Offic€. DA SeLt fot Change]. AsideP569-M El Nino MitigationMeatnes tu paldy Sector[afiiclo onlino], 3 .-(i)aajlable http/wa,w.da.eov.ph/nowirdex2.php?pass=News_ to/febfebo2_ at evefis/2o 20loa.hrnl.- According F 4 to Suane ! Reportof rheInter-gol,enmernal Pdnelon Ctirnat Aange (I?CC), ClillLediechargeis €xpected exaterbate to curent st€sses waterrcsourcsfiom population on grotth and economic andled-use change x x Dmught-afected x areas projoctcd increase ale to with the potential adv€Ne in,oxtent, forimpacts multiplesectolqincludingagricutturo, otr wat6r6upply, on€r$/production heal$. Regionally, and largoitrcrcas$in irrigation dematrd a result wator as ofolinate changes projected. x x are x- Euviromental and Sooial Impacts of Mi ng lafiicle odine], available 6t h$p://pdf.rri.org/rdlinlback$ound litemture_rcview.pdf. -- tf,
  • 16. Orders, I4junctions, and other Similar Orders. The relevant pmvisionsthereof are directly quotedhereunder: Sec. r. Role ofthe PNP in the Enforcement ofa Demolition Order - a. Police assistancein the enforcementor implementation of a demolition or injunction order shall be grantedonly upon a written request of ttre Sherriff or authorized representative and accompanied a valid order issuedby a competentcourt and / or by with wdtten permission from ttre Presidential Commission for Urban Poor. Moreover,said police assistance shall be coordinated and clearedwith tle concerned mayorbeforeits enforcement. b. The duties of PNP personnelin any demolition activity shall be limited to the maintenanceof peaceand order, protection of life and property, enforcement of laws and legal orders of duly constituted authorities, and to perform specific functions prescribed law. by c. PNP personnel tasked to provide police assistanee shall be in proper uniform and will be led by an officer during t]re actual and legal relocationphase.Theg shall be limited onlV to o@lrpAingthe first line of law mforcement and ciDil alisturbancecontrol; shall not pqrticipste in thephgsical ilismantling af ang structure subject of evictbn tr ilanolition; qnd shall refrain lrom the use of rmnecessary unreasonable and force (emphasisadded), Rule zr of the Operational Procedures dealswith Civil DisturbanceManagement (CDM)Operations. Provisions applicable this casearethe tofollowing: Sec. z. $peciffc Guidelines - xxx z. The membersof the PNP CDM contingent sftall not cang ang kind of frearms but may be equippedwith baton or riot sticks, crashhelmetswith visor, gasmasks,boots or anlde-highshoeswitl shin guartls(emphosrs addedJ. 3. Tear gas, smoke grenades, water cannons,or any similar anti- 1 1,; riot deviceshall not be usedunlessthe public assernblv attended is by acnral violence or serious threats of violence, or deliberate ,.i,, t. destructionof property. xxx ri Sec. 6. CDM Operational Arproaches - i n xxx "# z. In selecting an operational approach to a civit disturbanc€ situation, tle Commanderald his staff must adherescmDulouslvto the minimum necessaryforce" pinciple,fot (p ,6
  • 17. example,crowdcontrol formationsor riot control agentsshould not be used if saturation of area with manDower would sufEce (emphasisailded). xxx On October 2oo9,at least165policemenweredeployed Didipio z, to to assistOGPIin the implementation the writ of execution of issued the by PanelofArbitratorsagainst Heirsof lawagan.Earlierthat dar at about the 3:oo to 4:oo in tle morning,the houseof Elmer Lawagan burnedby was unidentified mel, someof whomweresuspecterl be members OGPIs to of securityguards,lawaganwas alsohit on his headby a hard wood from behind. When the residentssaw later in tle morning of that day that OGPIsdemolition was readyingto tear down Lawagans other houses, complete with a multitude of policemen carryinghigh-powered firearms escortingthem, the people immediatelyformed a human barricadeto preventthem from doing so. The policetried to break the barricaileanil that is whenthe situationbecame chaotic. policethen usedteargasand Thewatercanonto disperse barricading the people, situationcalmed The down when the RegionalTrial Court issued a TemporaryRestrainingOrder enjoiningthe demolitionof Lawagans properties fewhourslater, a Regardless who startedthe violencebetween policemen and of thethe protesting peopleon October 2, 2oog,it appears o quiteclearlythat thepoliceviolatedits own operational procedures approaching in demolitionand CDM operations. is expressly It statedin the PoliceManualthat thepolice should nol carry any firearm during a CDM operation,which ispractically role the PNPshouldtakeduringan execution a demolition the oforder. Ukewise,the policeshouldhaveexercised maximumtolerance andusedminimum and reasonable force in dealingwith the protesters.It isquite obviousthat the deplolrnentof 165 police men - most of whomcarried high-powered firearms to support the Sherriff in executinganappar"lt demolitionfrom the POA- is but waybeyond what is reasonablycalledfor underthe circumstances. Simplypu! it wasan overkill. Thepoliceargues that only45 policeofficersweredirectlyengased in : CDMoperations dayandthat the rzo policeofficerswho carriEd that hieh- n powered firearms were there to respond to intelligence reporb t[at nl "communists/terrorists"(CTs) might sow violence on tle iame dav. i, However, policedid not furnish the Commission copyof anv official / the a intelligencereport indicatingthreatsof a CT attackin Didipio on October 02, 2oo9.But evenassuming thereweresuchintelligence that reports,why r.:"1 was it tha! accorrling PNPProvincialDirector Supt. pedro Danguilan, ,i". to only 60 police officers were deployedto areas d Didipio repo.tedty I frequented CTs? by Wherewerethe 6o otler policeofficers-who wire atsi, - ii carrying high-poweredfirearms? In the absenceof any reasonable explanation why 165policeoffrcers weredeployed Didipio on that day, in the inescapableconclusion that they weredeployed assistthe Sherriff is to andOGPIin carryingout the demolitionof Lawagans properties, ntt-- ,t l{ //t
  • 18. -. TheCommissio!alsoexpresses deepconcern its overreportsthat the policedeployed Didipio aretakingthe sideof OGpIinsteadbfprotecting in $e ggneral peace and order.For example, wasreportedthat during thE it demolition conducted zz March zoo8, local residentEmilio puriihic onwasshot when_he-triecl stop the demolitioncrewfrom dismantlingthe toholse of his neighborManuelBidang. Bidangwasthen taking a napiisidesaidhouse. Acgounts from neighbors who witnessed shootingincident thestate that Emilio Pumihicwas restrainedby two (2) of OGpI,i securitypersonnel, while a third - later identified as Whitrey Dongiahon- shotPumihicat closerangewhile Pumihicwastrying to freehimself.Thebulletpiercedhis upperright arm and exitedtlmugh the upperright part of hisback.Theshoo,ngincidentoccurred plain view of members the pNp. in ofDespite this, tle policedid not apprehenal WhitneyDongiahon. another Inincident,a memberof PNP-RMG publiclydisrespected barangay a ofEcial,Councilor-Eduario Ananayo.In the eveningof z3 March 2oo8, the dayafter the demolition,SeuiorPoliceOfficer4 ("SPO+") NoelValdezslappedCouncilor Ananayo, accusing latter of instigatingthe local residents tle tofire their gunsat night to intimidateOGPIs staff.On top of all these, thereareallegations tlre PNP-RMG that deployed Didipio il keeping in stahonatOGPIs premises. The Commission remindsthe securitysector,particularlythe pNp-RMGin Didipio, ttrat ttreyarethe protectorof all people,not solelyof tlerich andthe powerfirl. CoNcLUsroN In light of the foregoing, the Commission RESOLVESUNANIMOUSLYTo: r. Recommendto the government under ttre new aclministration to look into the issues presented herein and consider the probable withclrawalof the FIAA grantedto the foreip companyin view of the t grossviolations of human rights it has committed; Iot 2. Require all concernedagencies,particularly the NCIP, the DENR- l * - MGB, t}le PNP and the AFP, to submit reports to the Commissionon ,1 Human Rights regardingconcreteactionsthey havetaken t o respect, .--)r protect and firlfill the rights of the affected community in Didipio, .!""1 witlin 3o daysfrom receipt of tlis resolutionl tY n" i:i 3. Requestthe sameagencies contiuue monitoring tle human rights to situation in Didipio with the view in mind that all reports of violations be verified and actedupon; 4. Advise the OGPI to considerthe findings aboveand conduct a policy re-orientation on the conduct of mining operation taking into 18
  • 19. conscious account observance humanrights of the community the of involved; 5, Direct the CHR RegionII offlce to activelyatlvocate the human for rights of the affectedcommunityand to take everysteppossibleto avoidthe occurrence furtherviolence oppression of ancl SORESOLVED. City,Philippines. Donethis roe dayof Januaryzorr, Quezon -c.r /s&r-&*f 6*k!- LORETTA ANN P. ROSALESI Chaimerson )#r (ONLEAVE) u- q.A 4/.+CECILIA RACIIEL V. QUISIMBING MA. VICTORIA V,CARDONA Commissioner BY:ATTESTED ASTNCION I. O-MARAVILLA SecretaryComniission