A/HRC/33/42
prior to approving or undertaking an investment. Some extractive industry bodies and
companies sourcing palm oil, sugar, soy and other resources have also made policy
progress towards the recognition of rights recognized in the Declaration, including the
requirement for such consent, as has the United Nations Global Compact. Those
developments reflect the general acknowledgement by transnational corporations of their
responsibility to respect indigenous peoples’ rights.
24.
However, implementation of those commitments remains poor, and issues remain
surrounding the interpretation of indigenous peoples’ rights, in particular the right to give
or withhold free, prior and informed consent.
25.
Tackling the underlying issue of corporate participation in violations of indigenous
peoples’ rights would contribute significantly to addressing the current imbalance and
incoherence in international law. Mechanisms have been proposed to address business and
human rights, such as arbitration tribunals dedicated to providing a remedy for affected
peoples and individuals. Discussions at the intergovernmental level on a treaty on business
and human rights have also raised many of the issues witnessed in the context of promoting
investor obligations under international investment agreements.
V. Impacts on indigenous peoples’ rights of investments,
international investment agreements and investor-State
dispute settlements
A.
Impact of investments on indigenous peoples
26.
The Special Rapporteur’s research reveals an alarming number of cases in the
mining, oil and gas, hydroelectric and agribusiness sectors whereby foreign investment
projects have resulted in serious violations of indigenous peoples’ land, self-governance
and cultural rights. Those violations, which can extend to crimes against humanity, have
been addressed extensively in the recommendations and jurisprudence of international and
regional human rights bodies.
27.
Typically, the host States involved employ economic development policies aimed at
the exploitation of energy, mineral, land or other resources that are predominantly located
in the territories of indigenous peoples. The government agencies responsible for
implementing those policies regard such lands and resources as available for unhindered
exploitation and actively promote them as such abroad to generate capital inflows.
Recognition of indigenous peoples’ rights in the domestic legal framework is either nonexistent, inadequate or not enforced. Where they exist, institutions mandated to uphold
indigenous peoples’ rights are politically weak, unaccountable or underfunded. Indigenous
peoples lack access to remedies in home and host States and are forced to mobilize, leading
to criminalization, violence and deaths. They experience profound human rights violations
as a result of impacts on their lands, livelihoods, cultures, development options and
governance structures, which, in some cases, threaten their very cultural and physical
survival. Projects are stalled and there is a trend towards investor-State dispute settlements
related to fair and equitable treatment, full protection and security and expropriation.
28.
Despite significant developments in the recognition of indigenous peoples’ rights
and safeguards under international human rights law, investment in those sectors is
generating “increasing and ever more widespread effects on indigenous peoples’ lives” 5 as
5
See A/HRC/24/41, para. 1.
7
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