Business & Human Rights website publishes letter to President Arroyo

PIPLinks … presented a letter to President Arroyo…raising issues around the recent concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD) ... [that urge] the Government to acknowledge that racial discrimination exists in the Philippines, to ensure that Indigenous Peoples are protected in situations of armed conflict and that independent and impartial investigations are conducted into all allegations of human rights violations …[ I]t recommended that the Government fully implement the IPRA … [and] made specific recommendations on the activities of TVI Pacific, who are operating in the ancestral domain of the Subanon at Mount Canatuan …

See:- http://www.business-humanrights.org/Links/Repository/165752

Text of letter from PIPLinks to President Arroyo re CERD country observations

President Arroyo
c/o the Philippines Embassy
8 Suffolk Street
London, SW1 4HG


18 September 2009

Your Excellency,

I am taking the opportunity of your visiting the United Kingdom, to write on behalf of Indigenous Peoples Links, a UK-based support organisation working to uphold and promote the collective and individual human rights of Indigenous Peoples. We would like to raise issues around the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD), which were made public on 31st August 2009.

The CERD issued its recommendations to the Philippines Government following its review of the Government's overdue report (and in doing so invited the Philippines "to observe the deadlines set for the submission of its reports in the future"). The CERD welcomed various positive developments in the legal framework, such as the 1997 Indigenous Peoples Rights Act (IPRA). However, it raised a number of concerns and recommendations in relation to respect for Indigenous Peoples' rights in practice.

In relation to the mining operations of TVI in the Ancestral Domain of the Subanon of Mt Canatuan, which has been subject to a submission to CERD's Early Warning Urgent Action Sub-Committee, the Committee noted that it "remains concerned that contradictory information continues to be presented to it with regard to the status of actions taken to address the violations of the Subanon people's rights and destruction of their sacred mountain." To address these violations of the Subanon's rights the Committee urged the Government 'to consult with all concerned parties in order to address the issues over Mt. Canatuan in a manner that respects customary laws and practices of the Subanon people and welcomes information from the State party in relation to further developments'

The Committee made an extensive set of recommendations in relation to its concern regarding the Government's implementation of Indigenous Peoples' rights, including urging the Government to:
· acknowledge that racial discrimination exists in the Philippines;
· gather disaggregated data on the situation of Indigenous Peoples through a consultative process with them;
· ensure that Indigenous Peoples are protected in situations of armed conflict and that independent and impartial investigations are conducted into all allegations of human rights violations;
· adopt adequate measures in order to ensure the enjoyment by internally displaced [Indigenous Peoples] of their rights under article 5 of the Convention, especially their right to security and their economic, social and cultural rights;
· conduct an independent review, in consultation with indigenous peoples, of the legislative framework in relation to indigenous property, with particular regard to the question of consistency between the IPRA, its implementing guidelines, the Regalian doctrine and other related doctrines, as well as the Mining Act of 1995;
· fully implement the IPRA, in particular by securing the effective enjoyment by indigenous peoples of their rights to ancestral domains, lands and natural resources, and ensuring that economic activities, especially mining, carried out on indigenous territories do not adversely affect the protection of the rights recognised to indigenous peoples under the aforementioned Act;
· streamline the process for obtaining land rights certificates and take effective measures to protect communities from retaliations and violations when attempting to exercise their rights;
· verify that the current structures and guidelines/procedures established to conduct FPIC are in accordance with the spirit and letter of the IPRA and set realistic time frames for consultation processes with indigenous peoples.';
· verify that the apparent lack of formal protests is not the result of a lack of effective remedies, the victims' lack of awareness of their rights, fear of reprisals, or a lack of confidence in the NCIP;
· 'to consider ratifying...ILO International Convention on Indigenous and Tribal Peoples (No. 169)' and 'making the optional declaration provided for in article 14 of the Convention'.

Finally the Committee required the Government to report back in one year in relation to:-
· actions taken to implement the recommendations of the reports of the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions and of the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous People;
· developments at Mt Canatuan in relation to the respect for customary laws and practices of the Subanon people;
· steps taken to streamline the process for obtaining land rights certificates and to put effective measures in place to protect communities from retaliations and violations when attempting to exercise their rights.

Given the above we would like to enquire what concrete measures your Government will take in order to implement these recommendations, particularly to ensure that the voice of Indigenous Peoples is heard more directly with regard to these important issues. Specifically we would like to know how you intend to "conduct an independent review, in consultation with indigenous peoples, of the legislative framework in relation to indigenous property", that also verifies "current structures and guidelines/procedures established to conduct FPIC are in accordance with the spirit and letter of the IPRA".

We look forward to hearing back from you at your earlier convenience.

Yours faithfully,


Geoff Nettleton
Coordinator
Indigenous Peoples Links

Indigenous peoples and human rights

By Anabelle E. Plantilla, Nature for Life, Manila Times
http://www.manilatimes.net/national/2009/aug/15/yehey/opinion/20090815opi5.html

15 August 2009

The Alyansa Tigil Mina (ATM) held a send-off lunch for Filipino indigenous peoples (IPs) leaders who left for Geneva, Switzerland last week to participate in the United Nations Committee on the Elimination of Racial Discrimination hearing on a complaint filed against the Philippine government by the Subanon community. ATM is an advocacy group and a people’s movement that upholds the rights of the present and future Filipinos against the persisting injustices related to mining. The three IP leaders are asserting that their rights to the ancestral domains have been violated, and that the actions of the Philippine government, particularly the National Commission on Indigenous Peoples have been adverse against them.

Timuay Jose Boy Anoy, one of the tribal leaders, is the rightful owner of ancestral land in Mount Canatuan. The Certificate of Ancestral Domain Title was personally given to him by President Gloria Arroyo but he has been ejected from his own land by TVI Resources Development Inc.

Timuay Noval Lambo, chief elder of the Subanon Council of Seven Rivers in the Zamboanga Peninsula and Peter Duyapat, president of the Didipio Earth Savers Movement Association belonging to the Ifugao community from Didipio, Kasibu, Nueva Vizcaya, have also been ejected from their own domains.

According to the Subanon tribal leader, Timuay Anoy, the commission on indigenous peoples facilitated the formation of a bogus tribal council in connivance with TVI, a Canadian mining company currently doing operations in their ancestral land. Furthermore, Timuay Anoy said that there was no genuine free and prior informed consent given to the mining operations and that their customs, traditions, and beliefs have been disrespected by no less than the government. According to Timuay Lambo, the government must tell the truth and should be held accountable because their report states that there was no discrimination against IPs.

The name Subanon means “river people,” which is derived from the word “suba” or river. The Subanon, also known in the Anglicized form as “Subanen,” is a tribe indigenous to the Zamboanga Peninsula area, particularly living in the mountainous areas of Zamboanga del Sur and Misamis Occidental. As the name implies, these people originally lived along riverbanks in the lowlands, however due to disturbances and competition from other settlers, these peace-loving tribe now reside in the mountains.

Duyapat, whose community is impacted by an Australian mining company, OceanaGold, said that the company has been abusing the rights of the indigenous community through militarization, displacement and loss of livelihood. He will raise complaints about their community’s situation in Geneva and demand that the real spirit of the Indigenous Peoples Rights Act should be implemented and genuine FPIC be sought.

The World Indigenous Peoples Day is observed on August 9 every year. There are 12 million IPs in the Philippines and the three IP leaders who went to Geneva will speak up, tell their stories and demand that the government heed their call for their right to self-determination; and the United Nations to urge and pressure the Republic of the Philippines to address justly, without discrimination, the issues of land rights, militarization, access to justice and protection of indigenous beliefs and practices.

ATM will support the initiative of these IP leaders to explore and maximize international venues where they can assert their rights to pursue the protection and enrichment of their indigenous cultures. The ATM is an alliance of mining-affected communities and their support groups of non-government organizations/public organizations and other civil society organizations convened by environmental conservation organization Haribon, Legal Rights and Natural Resources-Kasama sa Kalikasan/Friends of the Earth Philippines and Philippine Partnership for the Development of Human Resources in Rural Areas.

The Committee on the Elimination of Racial Discrimination is a body of independent experts, which monitors the implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its State parties. The Philippine government, having ratified the convention is obliged to regularly report to the committee on how it is being implemented. However, the government has failed in the required regular reporting since 1998.

orgsus@haribon.org.ph

Statement by LRC to UN on state of Philippine indigenous peoples

SPEAKER : Ana Rhia Muhi, Legal Rights and Natural Resources Center, Friends of the Earth Philippines Agenda: 4BStatement to the Second session of the UN Expert Mechanism on the Rights of Indigenous Peoples

Presentation under Agenda Item 4B - UN Declaration on the Rights of Indigenous Peoples

August 10-14, 2009

Good day to all. Madam Chair, thank you for this opportunity to share with this august body the Philippine experience with regard to policies on remedies, restitution and compensation through this short statement. I am Ana Rhia Muhi representing the Legal Rights and Natural Resources Center, Friends of the Earth Phils., a non-government organization that has been working with indigenous peoples of the Philippines for more than twenty years now. The Center has also been instrumental for the passage of the Indigenous Peoples Rights Act of 1997. The Indigenous Peoples Rights Act of the Philippines is similar to the UN Declaration of the Rights of Indigenous Peoples, thus we hope that our lessons learned from the implementation of the IPRA would contribute to the implementation of the UNDRIP, especially since the UN DRIP is not necessarily self-executory and would need enabling domestic laws to implement its policies within states.

Madam Chair, as you know, the Philippines is different from most of the countries in that it has a law which specifically focuses on the rights of indigenous peoples to their ancestral territories and to self-determination. Yet, despite the existence of such a law, just recently, on July 29, 2009, indigenous leaders all over the country delivered their own State of the Indigenous Peoples Address, stating that the indigenous peoples of the Philippines remain to be the poorest of the poor, victims of human rights violations and extrajudicial killings, and suffer land insecurity. With regard to these issues, I would like to particularly focus on access to justice vis-a-vís the issue of land insecurity due to the failure for the Philippine government to provide adequate remedies, redress, compensation and restitution.

In 1909, it has been held by the United States Supreme Court decision in Cariño vs. Insular Government that indigenous peoples privately own their territories and the natural resources found within through their native title. Despite this pronouncement however, the Philippine government continues to adhere to a colonial doctrine which states that the State owns all natural resources within the country, or otherwise called the Regalian doctrine. Thus, laws were passed based on the Regalian doctrine to legitimize encroachment and taking of ancestral lands without due process. Also, lands were classified by virtue of these laws into mineral, forest or agricultural lands effectively denying indigenous peoples their territories with just one stroke of the pen.

The Indigenous Peoples Rights Act ( or the IPRA) which was passed in 1997 recognized and was supposed to correct this historical wrong. However, even after more than a decade since its passage, indigenous peoples in the Philippines have not been afforded adequate remedies for restitution and compensation for past and present wrongs. Hardly any community have been compensated from illegal or wrongful taking of ancestral domain. A number of factors are attributed to this. First, IPRA recognizes so-called "vested rights" on lands which were acquired by virtue of discriminatory land laws. Another provision in the law itself limits the period to ten (10) years for an action for reconveyance or the return of illegal or wrongful taking of ancestral land. Additionally, this remedy highly depends on the political will and the budget of the National Commission on Indigenous Peoples (NCIP) to represent the indigenous community before domestic courts.

Second, despite the existence of IPRA, executive privileges and powers have been used and abused to weaken indigenous peoples rights through the issuance of regulations and policies, in effect making the law inutile. The current trend in the Philippines as we speak is one that further weakens the right to self-determination with the issuance of regulations that limit the exercise of free, prior and informed consent, public participation, social acceptability and jurisdiction, while ensuring military protection and increase of economic incentives for investors.

Third, access to justice remains to be difficult for indigenous peoples as the NCIP itself has been adamant for indigenous peoples to follow strict and formal remedial requirements so that the complaints of indigenous peoples may be considered.

Other times, it is the NCIP itself that facilitates the entry of extractive industries within ancestral lands through the manipulation of free, prior, and informed consent processes. It is no surprise therefore that some indigenous groups have called for the resignation of NCIP officials. In fact, recently, a panel of Civil Society Organizations, which we were also a part of, disengaged from a process involving the joint review of the Free, Prior and Informed Consent Guidelines with the NCIP as the CSO panel found NCIP insincere and self-serving.

These are only some factors that lead to the further disenfranchisement of indigenous peoples. Thus, we make the following recommendations:

1. Government agencies or instrumentalities which are established or mandated to protect indigenous peoples and their rights be run by indigenous peoples themselves to ensure that such officials understand the dynamics, laws and cultures of indigenous communities. Corollarily to that, indigenous peoples must be given full participation to choose their own representative to decision-making processes at the international, regional, national and local levels;

2. Government executive privileges and powers should not be used to undermine the efforts, most especially those made by indigenous peoples themselves, for the recognition and protection of indigenous peoples rights;

3. Governments should establish remedies and processes for redress of issues that are culturally-appropriate and not necessarily adhere to formal contemporary legal requirements, otherwise making such remedy or process inutile for indigenous peoples;

4. Governments should afford indigenous peoples adequate time and resources to be able to take the most viable option for redress, restitution, compensation and reconveyance;

5. Governments should establish regulations for the reclassification of lands to properly reflect ownership of indigenous peoples to their ancestral territories, and finally,

6. For states and governments, motu proprio or at its own instance, initiate processes and remedies for redress, restitution, compensation and reconveyance in order to correct historical wrongs.

Thank you Madam Chair.

Statement by Peter Duyapat of DESAMA

Statement to the Second session of the UN Expert Mechanism on the Rights of Indigenous Peoples

Speaker : Peter Duyapat from the Didipio Earthsavers Multipurpose Association (DESAMA)

Thank you Madam Chair for this opportunity to share with the participants of this session our experience in the Philippines and to give our recommendations for the consideration of the UN Human Rights Council through the Expert Mechanism on the Rights of Indigenous Peoples.

I am Peter Duyapat, belonging to the Ifugao indigenous community living in Didipio, Municipality Kasibu, province of Nueva Vizcaya. I am the leader of our local organization, the Didipio Earthsavers Multipurpose Association. In the early 1960s, because of limited livelihood options and poverty, the then Commission on National Integration (CNI) encouraged my family and other Ifugao families to relocate to Didipio, Municpality of Kasibu, Nueva Vizcaya from Hungduan, Ifugao Province so that we can establish our community there. Here, we were able to set up our agricultural farms to feed our families. Together with other settlers, we were able to live satisfactorily and our children were able to go to school.

Madam Chair, the problem came when the Philippine government awarded a Financial or Technical Assistance Agreement to Arimco Mining Corporation, an Australian mining company, in 1994. Our free, prior, and informed consent was not given to them, and yet, despite this, the Philippine government allowed the entry of the international mining corporation even with our adamant opposition. In the following decades, we have suffered numerous human rights violations. This would include demolition of our houses, blocking our ingress and egress from the area, physical abuses against other indigenous members of our community, filing strategic lawsuits against public participation, and many more. The most recent of which, when I, myself, last April 2009, was physically attacked by company guards led by the security head and was brought to the Philippine National Police who did not do anything to protect me. I was only released when people came to demand for my release.

We sought the assistance of the National Commission on Indigenous Peoples (NCIP), especially with regard to the absence of FPIC for the mining operations. However, we were told that because we were migrant IPs, we did not have the right to FPIC. Added to this, we were charged with criminal cases by government agencies, the Department of Environment and Natural Resources, for illegal occupation of forest lands, despite the fact that it was also the government that encouraged us to settle in our area in the early 1960s. Ironically, Madam Chair, they allow mining operations on forest lands which should be prohibited, but do not respect our rights as migrants and long-term settlers.

Madam Chair, there have been a number of times that the mining company, now OceanGold Philippines, Inc., demolished and/or attempted to demolish our homes for the mining operations. Most of the times, the company was accompanied by members of the Philippine National Police. Currently, allegedly because of President Gloria Macapagal-Arroyo's order, military forces are now deployed in our area. During the past years, President Arroyo has implemented her policy on foreign investments through the establishment of the Investment Defence Forces, wherein military resources of the country are used for the benefit of the corporations, but on the other hand, undermines our rights to voice out opposition.

In light of this, we would therefore like to make the following recommendations:

1. That migrant indigenous peoples should be afforded the same rights as with other indigenous peoples, especially on the right to self-determination and the right to Free, Prior and Informed Consent;
2. That military forces should not be used by governments to assist or protect extractive corporations to the detriment of the indigenous peoples; and,
3. To encourage state governments to pass legislation on natural resource management which fully recognizes the rights of indigenous peoples like the Alternative Mining Bill of the Philippines.

There is a You-tube link to this presentation (although sound is poor quality)

Statement by IPRM to UN on situation of Philippines Indigenous Peoples

Statement to the Second session of the UN Expert Mechanism on the Rights of Indigenous Peoples Presentation under Agenda Item 4

By Manja Bayang, on behalf of the Indigenous Peoples Rights Monitor

It is an honor to speak before this august body.

I represent the Indigenous Peoples Rights Monitor, a network of indigenous peoples organizations and support groups, with the mandate of monitoring, documenting and reporting violations of human rights committed by the State and its agents against indigenous peoples and communities.

Thirteen years after the Indigenous Peoples Rights Act (IPRA) and two years after the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted, indigenous peoples in the Philippines continue to suffer from human rights violations. The Philippines continue to fail in its obligations under the UNDRIP and continue to violate the provisions of the IPRA, the very law which it passed to supposedly protect the rights of indigenous peoples. Ironically, this law is even manipulated to perpetuate violations of indigenous peoples' rights.

Contrary to Article 30, Article 10 and pertinent provisions of the UNDRIP, massive military operations continue in indigenous peoples communities. The Philippines state actively promote and implement its National Internal Security Plan on Indigenous Peoples which perpetrates military operations in indigenous people's lands and the persecution of indigenous peoples' activists. As a result of this State policy and the unabated military operations, indigenous peoples' communities have been subjected to forced evacuations especially of the Lumads in Mindanao, desecration and destruction of their sacred sites. Indigenous peoples have been subjected to various forms of human rights violations ranging from harassments, torture, rape against women, grave threats resulting to sever trauma among children, enforced disappearance and even assassinations of indigenous activists. Since 2001, IPRM was able to document 133 cases of extrajudicial killings of indigenous activists nationwide and one case of enforced disappearance.

The entry of mining and other extractive projects also result to severe militarization of indigenous communities which result to all forms of human rights violations. On January 6, 2008, intense military operations were conducted by the 73rd Infantry Battalion and the Army Scout Rangers in the remote areas of Talaingod, Davao Del Norte. Aerial bombings, army foot patrols, and combat operations greatly alarmed the Ata-Manobo residents, causing them to flee their homes and seek refuge in the forests. Similar evacuations occurred in other indigenous communities because of military operations, forcing them to become internal refugees. The worse impacts fall on the women and children who suffer most in these situations.

Contrary to Article 32, Article 26 and other pertinent provisions of the UNDRIP, the right of indigenous peoples to their lands and territories and to free prior and informed consent, continue to be violated. Large scale mining activities continue in indigenous peoples territories, dams and other hydro electric projects are undertaken, logging is still conducted on indigenous peoples forests. The lands and resources of indigenous peoples continue to be desecrated.

Moreover, the right of indigenous peoples to FPIC is blatantly violated in the context of development projects being undertaken and which are planned to be undertaken in indigenous peoples' territories. The particular circumstances by which the self-determination rights of Indigenous Peoples are denied in the context of development projects vary from community to community.

In view hereof, I would like to forward the following recommendations, taking a bulk of it from the recommendations made during the International Conference on Extractive Industries and Indigenous Peoples on March 25, 2009 in Manila, Philippines that in order to ensure respect for the rights recognized in the UNDRIP, we recommend that EMRIP will:

1. Conduct a study, with the participation of Indigenous Peoples, on the impact of mining and other extractive industries on them;

2. Conduct a study, with the participation of Indigenous Peoples, on the implementation of the National Internal Security Plan on Indigenous Peoples, the counter-insurgency plans and the use of state forces in the advancement of the interests of transnational mining companies and the impacts on indigenous peoples and communities;

3. Along with the Indigenous Peoples Asia Caucus, it is strongly recommended that the EMRIP conduct a thorough study on the realization or lack of realization of the right to self determination, giving emphasis to the implementation of free prior and informed consent;

4. Elaborate mechanisms and procedures for States to implement the minimum standards set forth in the UNDRIP, including in particular Article 30 on military operations and Article 32 on the right to FPIC and to call on other UN procedures, mechanisms, agencies and bodies and other multi-lateral bodies to do likewise;

5. Demand for the strict implementation of International Humanitarian Laws and the UNDRIP in all military operations;

6. Establish practical procedures which provide indigenous communities with the opportunity to request the relevant UN agencies to assist them in the monitoring and provision of independent information on FPIC processes;

7. Request that the Special Representative to the Secretary General on the issue of human rights and transnational corporations and other businesses, John Ruggie, to actively engage with impacted indigenous community through workshops addressing indigenous peoples rights and mining or other extractive industries, and together with other UN procedures, bodies and agencies, promote the enactment of legislation in home states of transnational corporations to provide for extraterritorial jurisdiction in relation to their activities;

8. Recommend that the World Bank Group and other International Financial Institutions (IFIs) update its operational directives and safeguard policies pertaining to Indigenous Peoples to include the right to FPIC, as required under the UNDRIP. Specifically to recommend to the Asian Development Bank (ADB) to include the requirement to obtain FPIC in its safeguard policies on Indigenous Peoples environment and resettlement;

9. Recommend that the World Bank Group and other IFI's immediately stop funding, promoting and supporting large scale mining and hydro electric projects on indigenous peoples lands, and to provide a timeline for ending of all such funding;

10. Recommend that the World Health Organization consider conducting a study on the impact of cyanide and heavy metals on the right to health of communities impacted by mining.


Let me end this intervention by quoting the famous adage that says, "Our Land is our life"; take it away from us, and your are taking the lives of our people, our children and the generations after us.

Danum id Tudey ya id Gedangan ay menlamnin et was-in di men lamlamnin ta maid mangmangwani en ate (Like the cool waters that spring from our mountains, let us go forth in peace and good health.)