A/HRC/21/55 realized.3 Such clarity must be provided with a view to ensuring business respect for the international human rights framework applicable to indigenous peoples. 3. Right to participate is not confined to recognized legal entitlements to lands, territories and resources 6. The right of indigenous peoples to participate in decision-making in relation to extractive activities is not confined to situations where indigenous peoples have a Staterecognized title to the lands, territories and resources on or near which the extractive activity is to take place.4 It extends to situations where indigenous peoples have traditionally owned or otherwise occupied and used land, territories and resources under their own indigenous laws. This applies to areas near or on which extractive activities take place or are proposed to take place.5 7. Indigenous peoples have a right to participate in decision-making in relation to extractive enterprises on or near territories which are of importance to them, including where they have not possessed or do not permanently possess, traditionally and/or currently, those lands, territories and resources. 4. Range of duties, from consultation to consent (a) Consultation (i) Duties of the State and/or extractive enterprise 8. States must take full responsibility in ensuring that adequate consultation is undertaken to obtain consent. A State cannot delegate its responsibility, even where it engages third parties to assist in consultation mechanisms (A/HRC/18/35, para. 63). Consultation is often the starting point for seeking the free, prior and informed consent of indigenous peoples. If the potential impact or impact is minor, the requirement to seek the free, prior and informed consent of indigenous peoples may not necessarily be required. Nonetheless, as stated in advice No. 2, “the objective of consultations should be to achieve agreement or consensus” (A/HRC/18/42, annex, para. 9). 9. While the State is the primary bearer of duties under international human rights law, business enterprises also have a responsibility to respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved. 6 10. Accordingly, business enterprises, including those in extractive industries, should take steps to avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur, and seek to prevent or mitigate adverse human rights impacts with which they are involved through their business relationships, including with State entities. When operating in relation to the lands, 3 4 5 6 16 See Guiding Principles on Business and Human Rights, principle 3. A/HRC/12/34, para. 44. Note also the comment by the tripartite committee of the International Labour Organization (ILO) Governing Body, cited by the Special Rapporteur, that under ILO Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries “consultations… are required in respect of resources owned by the State pertaining to the lands that the peoples concerned occupy or otherwise use, whether or not they hold ownership title to those lands” (ibid.). Report of the Special Rapporteur on the rights of indigenous peoples on extractive industries operating within or near indigenous territories (A/HRC/18/35). Guiding Principles on Business and Human Rights, principle 11.