A/HRC/24/41
in various contexts. Accordingly, the Guiding Principles on Business and Human Rights
specify that business enterprises have a responsibility to respect internationally recognized
human rights and that this responsibility is independent of State obligations. As explained
previously by the Special Rapporteur (A/HRC/21/47, paras. 55-56), this responsibility to
respect human rights extends to compliance with international standards concerning the
rights of indigenous peoples, in particular those set forth in the United Nations Declaration
on the Rights of Indigenous Peoples, no less than it applies to compliance with other
international human rights standards.
53.
Given their independent responsibility to respect human rights, business enterprises,
including extractive companies, should not assume that compliance with State law equals
compliance with the international standards of indigenous rights. On the contrary,
companies should perform due diligence to ensure that their actions will not violate or be
complicit in violating indigenous peoples’ rights, identifying and assessing any actual or
potential adverse human rights impacts of a resource extraction project.
54.
Such due diligence entails identifying with particularity, at the very earliest stages of
planning for an extractive project, the specific indigenous groups that may be affected by
the project, their rights in and around the project area and the potential impacts on those
rights. This due diligence should be performed preliminarily at the very earliest stages of
determining the feasibility of the project, in advance of a more complete project impact
assessment in later stages of planning or decision-making about the project. Additionally,
extractive companies should employ due diligence to avoid acquiring tainted assets, such as
permits previously acquired by other business enterprises in connection with prospecting
for or extracting resources in violation of indigenous peoples’ rights.
55.
Due diligence also entails ensuring that the company is not contributing to or
benefiting from any failure on the part of the State to meet its international obligations
towards indigenous peoples. Thus, for example, extractive companies should avoid
accepting permits or concessions from States when prior consultation and consent
requirements have not been met, as stated above (para. 40).
56.
Consistency and effectiveness of due diligence practices and respect for the rights of
indigenous peoples requires that companies adopt formal policies to that end. A company’s
policy should outline how the company intends to operationalize the policy at all levels of
decision-making, and how it will perform due diligence and act at the operational level to
avoid violating or being complicit in violations of indigenous peoples’ human rights.20 The
policy should also prescribe practices for engagement with indigenous peoples that is
respectful of their rights.
57.
The Special Rapporteur notes that a number of extractive companies, understanding
the practical advantages of respect for the rights of indigenous peoples and related due
diligence, have adopted company policies along the lines suggested, and that certain
industry associations have promoted such policies. Although the indicated trend in
corporate policymaking is encouraging, most corporate policies still fall short of adequately
providing for compliance with international standards of indigenous rights. Moreover,
notwithstanding the growing awareness among companies that they not only should respect
indigenous peoples’ rights, but may indeed benefit from doing so, the Special Rapporteur
remains concerned that many corporations still do not commit to more than complying with
national law and fail to independently conduct the relevant human rights due diligence.
There is an urgent need for greater corporate awareness and resolve to embrace and
implement policies and practices to ensure respect for the rights of indigenous peoples.
20
See the 2011 report of the Special Rapporteur submitted to the General Assembly (A/66/288), para. 96.
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