A/HRC/21/47
extractive industries, and the Special Rapporteur will be discussing this proposal with the
Expert Mechanism at its fifth session, in July 2012.
44.
The Special Rapporteur intends to continue to examine the issue of extractive
industries during the remainder of his mandate, in coordination with the Expert Mechanism.
He anticipates including, in a subsequent report to the Council, elements of good practices
on the basis of his examination of experiences around the world. Depending upon the
further work of the Expert Mechanism on the issue, he may also develop or contribute to
the development of relevant guidelines, as suggested in his previous report to the Council.
C.
Observations relevant to contributing to shared understanding about
relevant international standards and their application
45.
In anticipation of his further work on the issue of extractive industries in
coordination with the Expert Mechanism, the Special Rapporteur considers it useful to
provide observations that draw on his engagement with relevant actors in this regard. As
indicated in his previous report to the Council, a significant barrier to the effective
protection of indigenous peoples’ rights in the context of natural resource extraction and
development affecting them is the existence of conflicting points of view about the practical
implications of international standards affirming the rights of these peoples, and about the
kind of measures required to fulfil the responsibilities of States, corporate actors and
indigenous peoples themselves (A/HRC/18/35, para. 85). Such conflicting points of view
have continued to be apparent as the Special Rapporteur has continued his examination of
indigenous peoples’ concerns relating to extractive industries.
46.
In the remainder of the present report, the Special Rapporteur provides observations
aimed at contributing to a shared understanding about the relevant standards and their
practical implications. The effort is to help to forge a conceptual approach for discerning
international standards relating to resource extraction and development projects that affect
indigenous peoples, an approach aimed at practical outcomes that fully respect the rights of
indigenous peoples. The following observations build upon the Special Rapporteur’s
previous examinations of the duty of States to consult indigenous peoples on decisions
affecting them (see A/HRC/12/34) and the issue of corporate responsibility to respect
human rights (see A/HRC/15/37). These observations also take into account and seek to
complement the recent report of the Expert Mechanism (A/HRC/EMRIP/2011/2).
1.
Need for an approach that comprehensively takes account of the rights that may be
affected by extractive operations
47.
A common point of departure for examining the issue of extractive industries
affecting indigenous peoples is discussion about the meaning of the principles of
consultation and free, prior and informed consent that are articulated in international
instruments and the jurisprudence of international bodies. This discussion has become
highly contentious, with conflicting points of view about the scope of the duty of States to
consult indigenous peoples and about the need to obtain their consent to extractive projects
that may affect them.
48.
The Special Rapporteur is of the view that the pre-eminent focus on consultation and
consent is blurring understanding about the relevant human rights framework by which to
discern the conditions under which extractive industries may legitimately operate within or
near indigenous territories. It is simply misguided to tend to reduce examination of the
rights of indigenous peoples in the context of resource development projects to examination
of the contours of a right to be consulted or a right to free, prior and informed consent. To
be sure, understanding the contours of the principles of consultation and consent is of
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