A/HRC/15/37
they have traditionally used or occupied, that is, in accordance with their culturally distinct
patterns of use and occupation (Declaration, arts. 24–29; ILO Convention No. 169, arts.
13–17). Such patterns include a broad spectrum of activities not necessarily limited to
economic subsistence activities but which also include cultural and spiritual uses of the
territory, and the resources necessary for their economic and social development as peoples.
According to the international normative consensus, the right of indigenous peoples to
lands, territories and natural resources originates in their own customary law, values, habits
and customs and, therefore, is prior to and independent of State recognition in the form of
an official property title.
55.
The absence of official recognition of indigenous communal ownership, either
because such ownership has failed to be established through demarcation or title granting
processes or any other legal mechanism, or owing to the lack of adequate legislation,
cannot be used as grounds or as an excuse by companies that claim to be exercising due
diligence in relation to indigenous rights. Due diligence therefore requires that companies
conduct an independent assessment of the rights to which indigenous people may lay claim
in accordance with the criteria laid down in international rules, especially if such criteria are
not fully applicable under domestic law.
56.
The same line of reasoning informs World Bank and IFC policies concerning
indigenous peoples, according to which a set of special criteria apply when borrowers’
projects have any kind of impact on the territories or natural resources traditionally used by
indigenous peoples. For example, projects which depend on the recognition of indigenous
communal ownership or which involve land acquisition, require prior documentation,
prepared by experts, of indigenous patterns of land use and occupation. Under these
policies, indigenous customary land tenure must be treated on a equal footing with legally
titled ownership.45
57.
Given that customary land tenure is one of the specific features characterizing the
large majority of indigenous peoples worldwide, and a basic factor in the international
recognition of their rights, the mere existence of such groups in the areas where companies
plan to carry out their activities must be considered by those companies as a strong
indication that those groups have some sort of rights over the land and resources that they
occupy or otherwise use. Furthermore, companies cannot, in the exercise of due diligence,
assume that the absence of official recognition of indigenous communal ownership rights
implies that such rights do not exist.
58.
It is also particularly important to include in corporate activities special guarantees
of compensation for the removal of indigenous communities and peoples from their lands,
including in projects that involve the acquisition of indigenous lands held under individual
titles. In such cases, international standards require that alternatives that limit or avoid such
relocation should be sought and that compensation should be provided as a priority in the
form of other land (Declaration on the Rights of Indigenous Peoples, art. 10; ILO
Convention No. 169, art. 16). Moreover, under the Declaration, States must obtain the
consent of indigenous peoples before they can authorize their collective relocation (art. 10).
59.
Due diligence exercised by business in relation to indigenous lands, territories and
resources requires that companies bring to bear an intercultural understanding that goes far
beyond mere legal considerations. International standards have highlighted the special
relationship existing between indigenous peoples and their traditional territories, which
form the basis of their distinct identity and culture. Companies must understand that,
independent of the rights over their lands or resources to which they may lay claim under
45
GE.10-15075
OP 4.10, para. 17; PS-7, para. 13.
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