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agreements with indigenous peoples. These conditions point to models of partnership with
indigenous peoples that are respectful of their rights.
A.
Establishment of State regulatory regimes that adequately protect
indigenous peoples’ rights
44.
As stressed above, States are obligated not just to respect, but also to protect, promote
and fulfil human rights, and this obligation applies with respect to the rights of indigenous
peoples (para. 12). In the context of extractive industries, the State’s obligation to protect
human rights necessarily entails ensuring a regulatory framework that fully recognizes
indigenous peoples’ rights over lands and natural resources and other rights that may be
affected by extractive operations; that mandates respect for those rights both in all relevant
State administrative decision-making and in the behaviour of extractive companies; and that
provides effective sanctions and remedies when those rights are infringed either by
government or corporate actors. Such a regulatory framework requires legislation or
regulations that incorporate international standards of indigenous rights and that
operationalize them through the various components of State administration that govern land
tenure, mining, oil and gas, and other natural resource extraction or development.
45.
In examining relevant State laws and regulations across the globe, the Special
Rapporteur has found deficient regulatory frameworks, such that in many respects indigenous
peoples’ rights remain inadequately protected, and in all too many cases entirely unprotected,
in the face of extractive industries. Experience shows that, with such regulatory deficiencies,
extractive operations in proximity to indigenous peoples are likely to put at risk or infringe
their rights and contribute to persistently conflictive social environments.
46.
Legislative and administrative reforms are needed in virtually all countries in which
indigenous peoples live, in order to adequately define and protect their rights over lands and
resources, including rights over lands not exclusively under their use or possession, such as
rights related to subsistence practices or to areas of cultural or religious significance, which
may be affected by extractive industries. Additionally, new or strengthened regulatory
mechanisms are needed to provide for consultations with indigenous peoples over
extractive projects and to ensure that such consultations are in compliance with
international standards, including the principle of free, prior and informed consent.
B.
Regulation of extraterritorial activities of companies
47.
The Special Rapporteur has observed that in many cases in which extractive
companies have been identified as responsible for, or at least associated with, violations of
the rights of indigenous peoples, those violations occur in countries with weak regulatory
regimes, and the responsible companies are domiciled in other, typically much more
developed, countries. Even if States are not obligated under international law to regulate the
extraterritorial activities of companies domiciled in their territory in order to compel or
promote conformity with human rights standards, strong policy reasons exist for them to do
so, as affirmed by the Guiding Principles on Business and Human Rights.19 These reasons
include, in addition to preserving the States’ own reputation, the simple morality of
exercising the State regulatory power to advance human rights and reduce human turmoil
whenever possible.
19
Principle 2, commentary.
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