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).
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