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(Cantmissioit Hutran Righx aftha Phihpf inas) on

IN

RE:

DISPII\CEMENT

COMPII\INT OF R-ESIDEI|ITSOF DIDIPIO, KASIBU, NI,'EVA VIZCAYA[CHR-H-zoo8-ooSs (sPL. REPORT) l

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RESOLUTION CHR(IV) No.Aaofl-oo4
The ultimate goal of economicdevelopmentis to raise the quality of life of cll people.To this end, the Statepromotesthe firll and efficient useof private entities to invest in its human and natural resources encouraging by key industries and business enterprises. However, when private entities violate the fundamental rights and entitlements of the people in tle name of economicdevelopment,they not only losetleir moral legitimacy * they also defeatthe very purposefor which they were given authority to conduct business. The present case is a classic aad lamentable example of how economicaggresslon denigratesthe most basicof humaa rights. This caseis about the alarming human rights situation in Barangay Didipio, IGsibu, Nueva Vizcaya.At the center of the controversy are the 6iping operations of Oceana Gold Philippines, Inc. (OGPI), a foreignowned corporation, with which the national governmentof the Philippines has entered into a Financial and TechnicalAssistanceAgleement (FTAA). Severalresidentsof Didipio objectto the large-scale mining in their areaon ofperceived adverseeconomicand environmentalimpact that such account activity would cause to their community. Majority of the residents in Didipio are indigenous peoples although they are originally from other places and tlus cannot directly clairn ancestral domain over Didipio. Reports and complaints reached the Commission on Human Rights (Commissionfor brevity) aflegingwidespreadand systernaticviolations of human rights committed by OGPI and the security sectoragainstresidents opposed to large-scalemining. The tense situatjon in tle area has not abatedand seemsto be only getting worse. In furtherance of its commitment to protect and promote human rights, 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,

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as mouitor compliance tlerewith, the Commission took cognizance this of case,After a thorough review of all the information and documents gathered, Commission the finds that, indeed,humanrightsviolationswere peoples against indigenous the committed inhabitingDidipio.
, TITE REI'VANTFACTS

On 24 June 1994,PresidentFidel V. Ramosenteredinto a FTAAwith Arimco Mining Corporation (AMC) for the exploration, developmentand utilization of minerals located in about g7,ooo hectaresof land situated in the provinces of Nueva \rizcaya and Quirino. Included in this area is BarangayDidipio in Kasibu,NuevaVizcaya. On 03 March 1995,PresidentRamossignedinto law RepublicAct No. 7942 otherwise known as the Philippine Mining Act of 1995.Someof the provisions 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, penou the authorizedto conduct mining operation shall, pdor thereto, post a bond with the regionaldirector basedon the type of properties,the prer,ailing prices in and around the area-wbeG tie minins operationsare to be conducte4 with suety or suretiessatisfactory to the r€gionaldirector.

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On $ August 1995,the Departmentof Environmentand Natural (DENR)issuedthe Implementing Resources (IRR) Rulesand Regulations of R..d No. 7942throughDepartment Administrative Order(DAO)No. zg, seriesof r99S. This was superseded DAO No. 96-4o, seriesof 1996. by Pertinentto this case tle followingprovisions saidIRR: are of
Section106.Voluntary Agre€ment

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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 RegionalOffrce.The said agreement the concerned 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 consolidated with Climax Mining.Limited to form a singe company named Climax-Arimeo Mining Corporation (CAMC). In December1996,CAMCtransferredall its rights to the FTAAto Australasian Philippine Mining, Incorporateal(APMI), which transfer was approvetlby the DENR nine yearsafter in December2oo4. On rr Octoberzoo5, t}te DENR issuedan Order approvingtle Partial Declaration of Mining Project Feasibility for tle Didipio Gold/Copper Project. Saidproject is coveredby the FTAA held by APML In Decemberof the 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 case of Didipio Earth Savers'Multi-Purpose Association (DESAMA), et cl vs. Go rn et cl. upholding the constitutionality of the "taking" provisions of Rd No. 7942 and its correspondingrules and regulations.The dispositive portion of the decisionreads:
"WHEREFORX, the instant petition for prohibition and rncndcmus is hereby DISMISSED.Section76 of RepublicAct No. 7942and Sectionloi of DAO 96-40; nepubiic ect N6. 7942and its Implementing Rules and Regulationscontained in DAO 96-40 insofar as they relate to financial and technical assisrance agreements retbrredto in paragraph4 of S&tion z ofArticie xrt ot the Constitution are NOT UNCONSTTTUTIONAL. SOORDERED."

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O 1June2oo7APMI changed nameto OGPI; its
alleging that OGPI had illegally ard violently demolishedsome r87 houses

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In June 2oo8, reports and complaintswere filed with the CHR

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 which communityresidents roadsand pathways 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 residents from demolishing houses their neighbors. the of Reports said,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 first refusedentry by securityofficerswho lookedlike soldiers.After the securityofficersfinally got a go-signal from ttreir radio,the securityofhcers allowedthe teamto pass.Members the teamheardthe securityofficers !iof say,"mga toga-munisipryo yan " Whenthe teamidentifiedthemselves L lang as officers of the Commission Human Rights, the security ofEcers on became moreaccommodating towardsthe teamandwen escorted themto the affectedareas.The team then went to inspectt]le entire impact area, including the proposed site of damsfor mining purposes fearedto cause shortage cleanandsafewaterfor domestic irrigationpurposes. of and "* Thenext day,the teamconvened PubicDialogue a with the objective of understandingthe controversyfrom all perspectives. Said public Dialoguewas attendedby officersof OGPI,PNP officials,LGU officials. peoples representativestheNational of Commission Indigenous (NCIp), on

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and NGO and communityleadersand members.During the Dialogue, OGPIwas givenall opportunityto address aneryallegationcastat them. Likewise, the police was allowed to explain its participation in the controversy, including the October oz dispersal. The Commission requested from tle participantsall pertinentdocuments remrclsthat and would havea bearingin the determination the human rights issuesin of Didipio.The stakeholders compliedseveral daysafter the PublicDialogue, submittingvoluminous recordsand documents supporttheir positions. to Muchof the documents came from OGPIandthe NGOs.
IIIE HUMAN IIIGITTSIssUEs

Various issueshave muddled the controversyin Didipio. In fac! numerous criminal, civil and administrative cases havebeenfiled left and right, all of whichhavefor their root the mining operations the area.In in accordancewith international norms, standards and principles, the has Commission resolved address followinghumanrightsissues: to the
I. il. WIIETHER NoT OGPI VIoIAIED THERIG}ITTo ADEQUATE oR HousING ANDPRopERTy RIGltrs oF SEVERAL RESIDENTSDIDrpro; rN WHETHERoR NoT OGPI 1'IoI,ATED ITTERIGHT To FREEDoMoF MoVEMEM AND THE RIG}TT NoT To BE st'B.IEcTED ARBITRARY To
INIERFERENCEWITH THI HOME OFTHE PEOPLE DIDIPIO: IN

III.
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WHETHER NoT OGPI I'IoL{IED THEfuGIIT To SECURTTY PERsoN oR oF
OFTIIE PEOPLE DIDIPIO; IN WHETIIER OR NOT OGPI VIOLATEDTHE INDIGENOUS COMMUNfft'S RIGHTTo MANIFF,ST UIEIR CULTURE AND IDENTTaT WHETHER oR Nor OGPI vrorarED Tr{E fuGHT To WATER oF firE

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VI,

WHETHER oR NoT THE PNP 1'IoIATED ITs owN oPERAfioNAL PRocEDuFss DURING THEOcroBER 2 INCTDENT.

These issues shallbe addressed sen'otr'm. in
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I. OGPI \IoLATED fllr ADT4UAIE IIOUSING RESIDENIS TN DIDIPIO.

RIGII] TO RESIDEIYCE, TIIE RIGHT To AND PROPERTY RIGITAS OF SFYERAL

TheRightto Residence, Rightto Mequate Housingandprotectionof PropertyRights are well recognized botl internationaland domestic in

laws. Article $ (1) of the Universal Declarationof Human Rights (UDHR) statesthat "everyonehas the right to fteedom of movementand residence within the borders ofeach State."This declarationofthe Right to Residence and Freedomof Movementis reiteratedin Article rz (r) of the International Covenanton Civil and Political Rights (ICCPR)which provides: "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movementand freeclomto choose residence." his While many international documentsl recognize the Right to Adequate Housing, Article rr (r) of the International Covenant on Economic,Socialand Cultural Rights (ESCR)is consideredto be the most provision.r Saidprovision reatlsl relevantanil 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 General CommentNo. 7 on ForcedEvictions,elaboratingon tbe normative contents of the Right to Adequate Housrng.According to the CESCR, Right to the Adequate Housing should not be interpreted nilrrowly to mean having a roof on one'shead, Rather,it should be seenas the right to live somewhere in security,peaceand dignity, in conformity with the inherent dignity of.the human person.3 It can be gleaned from the aforementioned General Commentsthat the Right to AdequateHousing contains severalfreedoms and entitlements. These freedoms include: protection against forced evictions and the arbitrary destruction and demolition of one's home; t]te right to be free from arbitrary interference with one's home, privacy and family. On the other hand, tle entitlements include: security of tenure; housing, land antl property restitution, equal and nondiscriminatory access adequatehousing; and participation in housing-relateddecisionto making at the national and community levels.a
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The right to property, on ttre other ha:rd, is well entrenchedin our Constitution. Article III, Section r of the 1987 Constitution unequivocally states that "[n]o person shall be deprived of his life, litr:rerty propertg or without due processof law xxx" (emphasiscdded). Likewise, tht Civil
I A-s indicated CESCR in cenemlConm€nt 4, See No. article25 (l) ofrhe UnivenalDeclaralion Hurnsn on Riehts. anicle5 (e) (iii) ofthe lntemalional Convention theElimination on ofAll Fontrs ofRacialDiscrimilarionarticie14 (2) of the Codventiod the Elimination All Formsof Discriminajion on of against Wome&artiole22 (3) of th€ prcgress Developmen! Convenliotr drcRights on oflhe Chil4 aticle l0 ofthe Deolahtion Sooial on and s€ction III (ReLort (8) offte Vadcouver Declamtion Human otr Settlehe !, 1976 ofHabit* Unit6dNations Confer€nce on (JnitedNdtions publication, Human Settlements 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. l5). _l General Coffment 4, Pdragraph No. 3. l CESCR ' CESCR 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.

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Codeof the Philippinesaad Rulesof Court providefor other important legalframework that guarantees protects Rightto Property. and the OGPIviolatedtheserightspertainingto several Didipio'sresitlents of whenit forcefirllywicted them in contravention existinglaws,rulesand of regulations. Evidence obtained the Commission by indicatethat OGPIhascaused (r87) houses the the demolitionof at leastonehundrerlandeighty-seven of indigenousresidentsin Didipio. Said demolitionswere done uithout a court order and ruifhoutprovisionfor adequate relocation, requiredby as law. This wasreadilyand categorically admittedby Mr. Ramoncito Gozar, OGPI's VicePresident Communications ExternalAffairs. for and In defense, OGPIclaimstlat its conduct lawful.It interposes (1) is its right of immediateentry aad (z) right to exercise power of eminent the domaingrantedunto it asan FTAAholder,underSection on Easement 75 Rightsand Section76 on Entry into PrivateLandsAreasof the Philippine Mining Act of 1995, relationto Section in ro4, Section ro5, Section and ro7 Sectionro8 of its IRR. This right, OGPI claims,was recognized the by Supreme Courtin DESAMAus. Gozun. Precisely,in DESAMAef ol vs. Gonrn et al, the SupremeCourt classified Section andSection of the PhilippineMiningAct as"taking" 75 76 justified by State's provisions, powerof eminentdomain.While suchpower may be invokedand effectively exercised privateparties(i.e, holder of by mining contracts suchasOGPI),in cooperation with the State,the remedy is sfill to file expropriationproceedings and securethe necessary court order.OGPImaynot demolish "take"tle residents' properties, and without first complying witl the requirements law and dueprocess, cannotbe of It gainsaid that underour laws,demolitions mustbe donepursuant a court to order. There being none, OGPI'sconduct is patently unlawfirl and in violationof the residents' right to properlyanddueprocess.

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A closer examinationof the DESAMADecisionwill reveal that indeed,expropriation proceedings the properremedy case resident are in a refuses enterinto a voluntaryagreement to with a mining contractor.The {t;,:" L ' Sunreme Courtsaid:
"An examination of ttre foregoing provisions gives no indication that ttre courts are excluded from taking cognizance of expropdation cases under the mining law. The <iisagreemenr. refened to in Section1o7doesnot involve the exerciseof eminent dom,ain,rather it contemplatesof 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 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

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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 agreement with tle permit holder,tle only controversy beingtle amountto bepaid as just compensation. doesnot applyin cases It wherethe surface ownersdo not agreeto allow permit holdersentry to their lands.In suchcases, the proper remedy would be for the permit holder, by itself or with the assistance the State,to institute an expropriationproceeding the of in appropriatecourt, as providedunder Rule 67 of the Rulesof Court and jurisprudence. relevant Further, the Commission takesparticular note of OGPI'sapparent scheme "demolishnow, negotiate of later." This scbeme problematigto is residents against wall.Those sayt}releast,asit pushes up tle whose houses - someevenagainsttheir express weredemolished without their consent - are now forcedto take the petty sum OGPIoffersin exchange will for their homes and their lives in Didipio. The residentswere reducedto accepting OGPI's offerandsuccumbing thelatter'sunlarfrrl ploy.Worse, to a numberof residents werenevercompensated all. at (ZS%) the resitlents While it maybe true that aboutseventy-frve of in Didipio havealreadyenteredinto a voluntaryagreement with OGPI,there is still a considerable numberof residents tlat has not enteredinto such agreements. OGPIpositsthat muchof thesepeoplearenot reallyowners of the land theyoccupy. Assumingwithout conceding, thesepeople that were in fact illegal settlers,this doesnot give licenseto anyone,much less a foreign-owned corporation,to mistreatottrers,in violation of &e dignity tlat inheresin everyhuman. Evenin thoseinstances whereevictionand demolitionarejustified, internationalhumanright normsrequirethat theybe "carriedout in strict compliance with the relevantprovisions internationalhumanrights law of and in accordancewith general principles of reasonableness and proportionality."e "Evictions should not result in individuals being rendered homeless vulnerable the violationofother humanrights."z or to As tlis Commission has advisedpreviously demolitionsmust be just and humanemanner.Certainly,in someinstances, conducted a in justified. However,in no instance, dgmol$ons may.be,legally legally oi otherwise, the deprivationof one'sshelterbe donein a manier that can robsa person his digniry.a of blessing undertake to mining - FIAAs grart unto its holderthe State's and other exfiactivevenhues,and all its necessary incidents.within its
' CESCR Ce4eral Cormeff No. 7, Paragraph 14. -ad, Paxagraph f6 I 'Commissiono[ Human fughts,Advisoryon the Codduct Forced of EvictioN andHouse Demolitions May (06 2008).

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patrimony.It is not carfe blanche the wholesale for denigrationof human rightsof people whostandto 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 to Freedomof Movementand the Fjght Not to be Subjected Arbitrary to with One'sHome. Interference 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. Ereryonehasthe right to the protection of the law againstsuch interferenceor attacks,

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t,, In its GeneralCommentNo. e7 on Freedomof Movement,tle (HRC)clarifiesthat Article 12(1) of the ICCPR HumanRightsCommittee entitles personsto move from one plape to another and to establish themselves a placeof their choice. in I Theenjoyment this right mustnot of '+J be made dependenton any particular purpose or reason and any t-1i' restrictionsthereofmust be in strict conformitywith law's Moreover, tle HRCpointed out the obligationof Statesto ensurethe protectionof the Right to Movement not only from public but also from private interference.to HRCalsostatedtlat right to residein a placeof one's The choicewithin the territory includesprotectionagainstaUforms of forced
e^HRC GeneralComme0t 27. Psragaph5. No. '"14, Paragraph 6.

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 One's 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,.7'us 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 i\i guard againstcontrabands. - Ihe authorization given to OGPI by the BarangayCouncil of Didipio only relatesto the liquor ban. On the other hand, the authority comingfrim the DENR is only in respectof arresting illegal logging and illegal mining. Certalnly, OGPI cannot use tlese authorizitions tol*tify G arbitra;, interferenceto the enjoymentof the rights of the residentsofnidipio. OCfi should have deviseda mechanismthat avoids unnecessary incoivenience to the residenceat the sametime that it servesthe purpoie of prohibiting illegal activities.
" 1d, Paragraph 7. ': HRCCeoeral Comment 16,Paragraph No. i. " Id., Par?'graph 4. '' Flenming Sherwoo4 pac. vs. 139N.W. 101, JotrsoD Crookshankr,29 ZB. vs.

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The Commission also observes that the Derimeter fences were introduced in consciousdisregardof the rights of the residentsof Didipio. No genuine consultation of the residents was ever had as to the construction of said fences,much less as to its location. At the very least, OGPI should have observed the basic principles of participatiou aud transparencyif it really intended to respectthe rights of the residents in Didipio. III. OGPI vrollrrED TrrE Rrcr{r To SEcnRrry oF PERsoNoF firE
PEOPLE IN DIDIPIO.

The security checkpoints situated along Didipio's main road and aroundthe perimeterof the ProjectArea are m.anneil OGPI'sprivate by securitypersonnel openlycarryingarms,therebythreatening members of &e community. Membersof the PhilippineNational Police-Regional Mobile Group (PNP-RMG) Nuera Vizcala and Quirino were alsodetailedin Didipio. of Local residentsof Didipio, however,report that insteadof frrlfilling its mandate maintainpeace order in the community,saidmembers to ancl of the 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 of mireclwith violence.For example, during the demolitionconducted zz on March 2oo8, local residentEmilio Pumihicwasshotwhenhe tried to stoD the demolitioncrew from dismantlingthe houseof his neighborManuei Bidaug.Bidangwas then taking a nap inside said house.Accountsfrom neighbors who witnessed shootingincident statethat Emilio pumihic the wasrestainedby two (z) of OGPI's personnel, security while a third - later - shot Pumihic at close range while identified as Whitney Dongiahon 'ii ' Pumihicwastrying to free himself.The bullet piercedhis upperright arm and exitedthroughtle upperright part of his back.the shootingincident occurredin plain view of membersof the Philippine National police. fi.' Despitethis, said WhibreyDongiahon was not apprehended. Thesefacts | 'i.,wereattested by Mr. Pumihichimself,and several to otherswhowitnessed theincident. i;i Other membersof tle communitywho stronglyopposelarge-scale mining operations are constantly threatened by violent demolition. Me-anwhile, leadersof the oppositionistswere criminally chargedwith violations theForesby of Code. This stateof affairsin Didipio constitutes continuingthreat to the a securityof personsof the peoplein Didipio. It e4roses tlem to constant uncertainty- to an incessant that something fear untowardmight happen to them, their.family or their properties.Rightly so, the local governmem

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graveconcerns tle situationwouldleadto units in t}te areaeqnessed 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 CoMMUNnY's RIGHT m MANIFESTTITER CI',I'UREAND IDENTUY.

SinceDecember zoo7,OGPIhascaused demolitionof at leastone the (r87) housesin Didipio. Over and abovethe hundred and eighty-seven ilegality of subh conduct, this demolition resulted in the forced (r87) families who displacement at least one hundred eighty-seven of consider thesehouses their home.Majority of whom wereforcedto leave Didipio for good, and abandontheir indigenouS community,customs, traditionsandwayof life. Certainly,the impact of OGPI'sdemolitionsis irreducible to the physical dismantling ttreresidents' of houses. Demolitionandthe attendant peoples displacement indigenous of effectively denysaidpeoples 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 OGPI'sdemolitioncontravenes the peoples rights of indigenous 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 members their group.Article r of tle UnitedNationsDeclaration the of on Rightsof IndigenousPeoples ("UNDRIP') further guarantees indigenous peoples right to ttrefirll enjdyment all humanrightsandfundamental the of freedoms, individualsand cs o coLlectiue. corollaryobligationthus as The consists in ensuring the survival and continued developm6ntof the cultural,religiousand socialidentity of minority groups, thui enrichingthe fabricof society a whole.u as

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peoplesin Diclipio,OGpI { _ In.demolishingthe houles of indigenous 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.

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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 EXDRCISEGREAT O\uIIoN

REsottRcE DIDIpro, posslBr.y ENDANGERTNG Comuurrry's oF rHE FTNDATT'ENTAI RIGHTTOAccESS CI.EAN To WATER.

IN EXPI,oITING TIIE WAIER

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 a'right to water'in 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. -Paragraqh,rr o{ CESCRGeneral Comment No. $ emphasizesthe broad scopeof the-Rjght_toWater and puts in place a general'standardby which to measurethe fulfillment of such a right:
"The.elem- of-the right to water must be adequate for hnnfin €nts dignity, life and health, in accordance with Articles ll(r) and rz.
'' CESCR Gederal Conlaent 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 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€ ptaa of A9tion; anddle various g.Pqp{aqo! a4 Development; UN-Habitat The R€solutions adoptcd the by United Nations Ceneral Assombly theConmission Human and otr Rights, well asotheroxDert as alocumonts.

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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 in tlat aresaidto applyuniversally all circumstances: 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 can sufficient quantity of water for their personaland domesticuse. This includes water for drinking, personal hygiene, footl preparation and cooking,washingof clothes,and household sanitation.Not only should therebe enough waterto meetbasicdailyneeds, the supplyshouldalso but be continuous regular. or Quclirg meansthat water must be safe- it must not threatentle healthof thosewho useit, Thus,watermustbe ftee from microorganisms, chemicalsubstances radiological and hazards that cause humandiseases. Moreover, water'scolor,odorandtastehaveto beacceptable. the Accessibilifumeans that water and water facilities and services shouldbe alailableor accessible anyone, to without discriminationof any kind. It has four aspects: 1) Physical Accessibility; z) Economic Accessibility; Non-discrimination; 4) InformationAccessibility. and 3) As for domesticlaw, PD to67 alsoknown a$the Water Codeof the givespriority to ensuring Philippines watersecurityfor domestic purposes. Article zz of saidlaw niovides:
Art 22. Betweentwo or more appropriatorsofwater from the same sourcesof supplg priority in time of appropriation sball give the 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 appropriator for municipal use has a lowei priority in time of appropdation,then it shall be his dutv to find an alternativesource o-fsupply in acco_rdance conditions prescribedby the Council with (enphasis addeil).

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The collectivity of tlese norms establishes two key points: (r) a recognitionof the right to water as a distinct human righ! and (2) an acknowledgment the State's obligation to ensure the security-ancl of availabilityof safeandcleanwatersupplyfor domestic purposes.
t: CESCR GeieralConnentNo. 15,paragtaphl. I " CESCR G€neral Comeent 15,Paragmph No. 12.

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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 primarysources water- to facilitateits miningoperations, community's of posesa serioustlreat to the quantity and quality of the as the same T community'sryater resources. In termsof guanfitg,giventhe immense volumeof waterrequiredto processmineral ores,there is no certainty that an amount sufficient to sustainthe communities their day-to-day in domestic agriculturaluses and shall be left. The local communitiescould ill-afford a warer resouroeintensive indusby such as mining competingwitl tleir domesticand agriculturaluses,especially in light of the swereandprotracted so drought (El Nrno) the province recendysuffered has from andis predicted suffer to more frequenflyin the future because climatechange. Commission of The alsonotesthat the provinceof NueraVizcaya specifically was identifiedby the Department Agricultureas being particularly"vulnerable"2o of to.the - scarce it is - is boundto get As effectsof El lVino.2r such,cleanwater as muchscarcer.o In terms of qualitg, contaminateddischargesfrom the mine processing plants and tailings pondscould seepinto the river systems in the areavihichcouldcause human,aaimalandenvironrnental hazards that would eventuallyrender the water unfit for any and all uses it has traditionallybeenusedfor.,s OGPI is thus advised to exerciseprudence and extraordinary diligenceshould it utilize ttre Didipio's water resources, lest it violate Didipio'sindigenous community's humanright to *ater.
VI. TTx PNP !'IoIATED ITs owN OPERAnoNAL PRoCEDI,RES
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DTJRING fiIE OCTOBER 2 INCTDENT BY CARRYING HTGF.FOWERED FIREARIUS AND BY APPLYING UNNECASSARY AND TJNRX,ASONABLE FORCE.

The PNP Manual on Police Operational Proceduresprovides for , 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 to, (i.e. "lulnqtabl6"idplies s sceptibility but imbility to copewitfr,c6.tainadvolse impacts ltat ofEl NiDo)lFounbQuar.erly Report ofthe tnteBovernmental onClimare PmeJ Change]. " D-4 lrcs! Offic€. DA SeLt AsideP569-M El Nino MitigationMeatnes tu paldy Sector[afiiclo onlino], fot a\ajlable http/w\a,w.da.eov.ph/nowirdex2.php?pass=News_ to/febfebo2_ at evefis/2o 20loa.hrnl. - According \F 4' to Pdnelon Ctirnat Aange (I?CC), ClillLedie Suane ! Reportof rheInter-gol,enmernal chargeis €xpected exaterbate to curent st€sses waterrcsourcsfiom population on grotth and economic and led-use change x x Dmught-afected x areas projoctcd increase ale to in,oxtent, with the potential adv€Ne for impacts multiplesectolqincludingagricutturo, otr wat6r6upply, on€r$/production heal$. Regionally, and largo itrcrcas$in irrigation dematrd a result as wator ofolinate changes projected. x x are x - Euviromental and Sooial Impacts of Mi ng lafiicle odine], available 6t h$p://pdf.rri.org/ rdlinlback$ound litemture_rcview.pdf.

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Orders, I4junctions, and other Similar Orders. The relevant pmvisions thereof 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 Disturbance (CDM)Operations. Management Provisions applicable this casearethe to following:
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. water cannons,or any similar anti3. Tear gas, smoke grenades, riot deviceshall not be usedunlessthe public assernblv attended is by acnral violence or serious threats of violence, or deliberate destructionof property. xxx Sec. 6. CDM Operational Arproaches xxx z. In selecting an operational approach to a civit disturbanc€ situation, tle Commander ald his staff must adherescmDulouslv to the 'minimum necessary pinciple,fot force"
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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 in tle morning,the houseof Elmer Lawagan burnedby was 3:oo to 4:oo mel, someof whomweresuspecterl be members OGPI's unidentified to of securityguards,lawaganwas alsohit on his headby a hard wood from behind. When the residentssaw later in tle morning of that day that OGPI'sdemolition was readyingto tear down Lawagan's 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 The 'watercanonto disperse barricading people, situationcalmed the The down when the RegionalTrial Court issued a TemporaryRestrainingOrder properties fewhourslater, enjoiningthe demolitionof Lawagan's a Regardless who startedthe violencebetween policemen and of the peopleon October 2, 2oog,it appears quiteclearlythat the the protesting o policeviolatedits own operational procedures approaching in demolition and CDM operations. is expressly It statedin the PoliceManualthat the police should nol carry any firearm during a CDM operation,which is practically role the PNPshouldtakeduringan execution a demolition the of order. Ukewise,the policeshouldhaveexercised maximumtolerance and usedminimum and reasonable force in dealingwith the protesters.It is quite obviousthat the deplol'rnentof 165 police men - most of whom carried high-powered firearms to support the Sherriff in executingan appar"lt demolitionfrom the POA- is but waybeyond what is reasonably calledfor 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 intelligence report 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 inescapable conclusion that they weredeployed assistthe Sherriff is to andOGPIin carryingout the demolitionof Lawagan's properties, n tt-,t l\{
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its overreportsthat the -. TheCommissio!alsoexpresses deepconcern policedeployed Didipio aretakingthe sideof OGpIinsteadbfprotecting in peace and order.For example, wasreportedthat during thE it $e ggneral demolition conducted zz March zoo8, local residentEmilio puriihic on wasshot when_he-triecl stop the demolitioncrewfrom dismantlingthe to holse of his neighborManuelBidang. Bidangwasthen taking a napiiside saidhouse. Acgounts from neighbors who witnessed shootingincident the state that Emilio Pumihicwas restrainedby two (2) of OGpI,i security personnel, while a third - later identified as Whitrey Dongiahon- shot Pumihicat closerangewhile Pumihicwastrying to freehimself.Thebullet piercedhis upperright arm and exitedtlmugh the upperright part of his back.Theshoo',ngincidentoccurred plain view of members the pNp. in of Despite this, tle policedid not apprehenal WhitneyDongiahon. another In incident,a memberof PNP-RMG publiclydisrespected barangay a ofEcial, Councilor-Eduario Ananayo.In the eveningof z3 March 2oo8, the day after the demolition,SeuiorPoliceOfficer4 ("SPO+") NoelValdezslapped Councilor Ananayo, accusing latter of instigatingthe local residents tle to fire their gunsat night to intimidateOGPI's staff.On top of all these, there areallegations tlre PNP-RMG that deployed Didipio il keeping in stahonat premises. OGPI's The Commission remindsthe securitysector,particularlythe pNpRMGin Didipio, ttrat ttreyarethe protectorof all people,not solelyof tle rich andthe powerfirl.
CoNcLUsroN In light of the UNANIMOUSLYTo: foregoing, the Commission RESOLVES

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; I'ot 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 'tY witlin 3o daysfrom receipt of tlis resolutionl to 3. Requestthe sameagencies contiuue monitoring tle human rights 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
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of the account observance humanrights of the community conscious involved; for 5, Direct the CHR RegionII offlce to activelyatlvocate the human rights of the affectedcommunityand to take everysteppossibleto ancl of avoidthe occurrence furtherviolence oppression' SORESOLVED. City,Philippines. Donethis roe dayof Januaryzorr, Quezon
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LORETTA ANN P. ROSALESI Chaimerson )#r

(ONLEAVE) CECILIA RACIIEL V. QUISI'MBING Commissioner

'u- q.A 4/.+
MA. VICTORIA V,CARDONA

BY: ATTESTED
AST'NCION I. O-MARAVILLA

Secretary Comniission

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