A/HRC/21/55 Annex Advice No. 4 (2012): Indigenous peoples and the right to participate in decision-making, with a focus on extractive industries A. Background 1. The present advice is in follow-up to advice No. 2,1 and is based on relevant law and policy relating to, inter alia, the permanent sovereignty of indigenous peoples over natural resources, sustainable development and environmental responsibilities and rights; an analysis of the Guiding Principles on Business and Human Rights (A/HRC/17/31, annex); and the United Nations Declaration on the Rights of Indigenous Peoples and other key international laws, norms and standards. 2. One emerging trend in the context of resource extraction on indigenous lands and territories is the application for licences and permits by small-scale enterprises that are then sold to large-scale enterprises prior to or during development. In some cases, the larger the corporation, the greater the likelihood for adverse human rights impacts, given the imbalance of power. This can be somewhat guarded against by ensuring that agreements regarding human rights protections adopted by the small-scale corporations are incorporated into the terms of the sale to, or takeover by, the large-scale corporations. The responsibility to respect human rights applies fully and equally to all business enterprises, including those owned and operated by indigenous peoples or corporations. 3. The advice is necessarily expressed at a general level; it should be interpreted flexibly in the light of the specific context within which an extractive activity is taking place or is being planned, and purposively. 2 B. Law 1. Scope of the right of indigenous peoples to participate in decision-making 4. The right of indigenous peoples to participate in decision-making in relation to extractive industries is interrelated with the right to self-determination, the right to autonomy, the right to be consulted and the duty of States to seek to obtain the free, prior and informed consent of indigenous peoples, as set out by the Expert Mechanism on the Rights of Indigenous Peoples (see A/HRC/18/42). 2. States should provide clarity on consultation and consent seeking 5. States are under an obligation to provide businesses and indigenous peoples with clarity on how the right of indigenous peoples to participate in decision-making can be 1 2 Final report of the study on indigenous peoples and the right to participate in decision-making (A/HRC/18/42, annex). Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (A/HRC/12/34), paras. 37 and 43. 15