A/HRC/21/55 and other development projects on or near indigenous territories has become one of the foremost concerns of indigenous peoples worldwide, and possibly also the most pervasive source of the challenges to the full exercise of their rights” (A/HRC/18/35, para. 57). (b) Need for clarity of ownership of natural resources 32. States and private industries often note the lack of certainty in policy and legislative frameworks when reconciling the rights of indigenous peoples in the context of extractive industries. Central to this uncertainty is the issue of ownership over natural resources; in many cases, States claim these resources as “State-owned” without regard to the rights of indigenous peoples, leading to the dispossession of their lands, territories and resources.15 33. The Special Rapporteur on the rights of indigenous peoples has “observed significant legal and policy gaps and lack of coherence in standards related to extractive industries in countries across all regions”.16 Moreover, many private enterprises responding to his questionnaire survey on extractive industries “expressed concern over the significant level of uncertainty surrounding consultation procedures. A survey of business responses suggest that questions remain regarding the scope and implications of consultations, as well as the specific circumstances that may trigger the duty to consult. Uncertainty also remains for Governments and businesses regarding the identification of communities with whom it is necessary to consult, in particular indigenous communities whose lands have not been demarcated by the State and communities in which both indigenous and non-indigenous peoples live” (A/HRC/18/35, para. 45). Furthermore, uncertainty in regulations can be costly (ibid., para. 48). 34. The Special Rapporteur also noted that there is a lack of clarity among various actors about the content and scope of the right to participate in decision-making and the precise requirements of the principle of free, prior and informed consent. He states that “differing or vague understandings persist about the scope and content of indigenous peoples‟ rights and about the degree and nature of the responsibility of the State to ensure the protection of these rights in the context of extractive industries” (ibid., para. 60). 35. In addition to the lack of clarity, non-compliance with indigenous peoples‟ right to participate in decision-making appears to lie as much with a lack of political will as with uncertainty in the practical steps necessary to respect indigenous peoples‟ rights. (c) Procedural versus substantive rights 36. Concern has been expressed that indigenous peoples‟ procedural rights must not have priority over indigenous peoples‟ substantive rights (E/C.19/2011/5, paras. 18 and 36) in relation to indigenous peoples‟ right to participate in decision making. Indigenous peoples‟ rights to participate in decision-making in relation to extractive enterprises that affect them must not be understood as a trade-off for or exchangeable with indigenous peoples‟ substantive rights to their lands, territories and resources. Rather, the procedural aspects of the right (such as consultation) exist to promote the substantive right (such as self-determination and underlying rights relating to lands, territories and resources). In this regard, it has been recognized that there has been too much attention paid to the procedural aspect (A/HRC/18/43, para. 31). 15 16 See E/CN.4/Sub.2/2004/30 and E/C.19/2009/CRP.8. Special Rapporteur on the rights of indigenous peoples, statement (note 14 above). 11