resource rights, states are required to give legal recognition and protection to these lands,
territories, and resources, with due respect to the customs, traditions, and land tenure
systems of the indigenous and/or tribal peoples concerned. 58
As part of their obligation to protect indigenous and tribal peoples’ rights, states have a duty
to consult and cooperate with indigenous and tribal peoples through their own
representative institutions in order to obtain their free and informed consent prior to
approving any project affecting their lands or territories and other resources. 59 This duty
should be understood as a safeguard mechanism against measures that may affect
indigenous and tribal peoples’ internationally recognized human rights.60 Human rights
impact assessments that include a full analysis of indigenous and tribal peoples’ rights are
another safeguard, with accompanying measures to mitigate adverse rights impacts or
compensate them for such impacts in accordance with international standards.
Corporate responsibility frameworks
While the obligation to respect, protect, and fulfill human rights lies with governments,
businesses have a parallel responsibility to respect human rights, including the rights of
indigenous and tribal peoples. In the Protect, Respect and Remedy framework (2008),
Professor John Ruggie, former UN Secretary-General’s Special Representative for Business
and Human Rights, elaborated on the basis for the international human rights obligations
and responsibilities pertaining to business. This framework was consolidated into a set of
Guiding Principles on Business and Human Rights endorsed by the UN Human Rights Council
in 2011. The framework and principles set out:
(i)
(ii)
(iii)
the state duty to protect human rights
the independent corporate responsibility to respect human rights
the need for a remedy for victims of business-related human rights abuses. 61
Newmont formally recognized the Guiding Principles within its corporate policy framework
in 2014, though it has committed to respect human rights since 2003. As part of their
responsibility to respect human rights, which exists independently of state obligations,
businesses must carry out due diligence to ensure that their activities do not infringe or
58
UNDRIP, art. 26.
UNDRIP, art. 32(2); ILO Convention 169.
60
Saramaka v. Suriname, Inter-American Court of Human Rights, 28 November 2007, paras. 129137; A/HRC/18/35, para. 82.
61
The Guiding Principles on Business and Human Rights. See also, UN Special Rapporteur on the
rights of indigenous peoples, James Anaya, “Extractive Industries and Indigenous Peoples,”
A/HRC/24/41, July 1, 2013, http://unsr.jamesanaya.org/docs/annual/2013-hrc-annual-report-en.pdf,
p. 21; UN Special Rapporteur on the rights of indigenous peoples, James Anaya, “Promotion and
Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the
Right to Development,” A/HRC/12/34, July 15, 2009,
http://unsr.jamesanaya.org/PDFs/Annual2009.pdf.
59