the manner in which corporations should respect this obligation in contexts where States fail to do so. 8. The use and application of FPIC within the framework of indigenous law has significant implications for national legal systems. These implications need to be explored in greater detail and a compilation of existing and evolving experience produced in a systematic manner. 9. Most States currently do not have sufficient institutional capacity, political will or know-how to establish and maintain legal and administrative systems which accord adequate respect to indigenous decision making and judicial processes. This is particularly the case in the context of investment and contractual arrangements with corporate entities. The provisions of the UN Declaration therefore pose a major challenge to States, particularly those that are relatively underresourced, and are institutionally fragile. In this context the requirement for FPIC must be addressed in investment agreements with corporations such that these States are not placed in the untenable position of being expected to compensate corporations in order to uphold indigenous peoples’ rights. 10. FPIC processes should be comprehensive and respect the collective and individual rights of indigenous peoples, including the rights of indigenous women. Corporations and other actors should not, however, generalize and assume that women are excluded in all indigenous peoples’ decision-making processes. There are many indigenous peoples where women have leading roles in decision making. It is also possible for communities to institute their own mechanisms to address issues around the lack of women’s participation where such issues exist. Women should be empowered to participate, but this must happen through internal procedures in a culturally appropriate manner and not be as a result of imposed procedures. Indigenous cultures are not static, and capacity-building with communities through culturally appropriate mechanisms can help them in addressing such issues. Recommendations to mining companies 1. Corporations should commit to respect international standards on indigenous peoples, especially the UN Declaration, ILO Convention 169 and the General Recommendation number 23 on indigenous peoples of the UN Committee on the Elimination of Racial Discrimination. These international standards should be mainstreamed within corporate policy and practice, integrated into their conduct of human rights due diligence, and promoted through the training and career development of their staff. Corporations should operate ‘as if’ these international standards were recognized under national law while also actively promoting their application within States which operate to lower standards. 2. Corporations need to adopt policies which clarify their human rights obligations under international standards, irrespective of national legislation. They also need to commit to those obligations flowing from the legislation and policies of home and host States. They should consider, in dialogue with affected indigenous rights holders and other relevant actors, the most effective ways to manifest their binding commitment as distinct corporations to operate up to, if not beyond, international standards on indigenous peoples’ rights. 3. Corporations should welcome and support the establishment of credible independent monitoring of their activities which enjoys the confidence of all the affected parties. 4 Corporations should acknowledge and respect the fact that FPIC is viewed by indigenous peoples as a principle which provides for their control over the future development of their territories, and as a manifestation of that control. They should accept that FPIC is a process which is to be defined and managed by the indigenous authorities and communities whose territories and futures are impacted by proposed mining projects. Consequently they should not be party to corporate, State or third party defined processes imposed on indigenous peoples. Where indigenous peoples have defined their own FPIC protocols or policies these should be respected. Making Free, Prior and Informed Consent a Reality 75

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