On 9 June 2026, the UN Working Group on the issue of human rights and transnational corporations and other business enterprises published a report that will not make headlines outside the small world of business-and-human-rights specialists, and that is precisely the problem for every company sitting on an Indigenous land claim it hasn’t resolved. A/HRC/62/36/Add.2, “Guidance on the right of Indigenous Peoples to free, prior and informed consent in the context of business activities,” is not a declaration of rights. It’s an operating manual — and it was written by the body whose entire mandate is to tell states and companies what “respecting human rights” actually requires of them in practice.

That distinction matters more than it looks.

1. The document matters because of where it sits

This is not EMRIP. It is not the UN Permanent Forum on Indigenous Issues. Both of those bodies have spent years building the normative case for free, prior and informed consent (FPIC) as a human right grounded in self-determination — necessary work, but work aimed at states, treaty bodies, and the slow architecture of international law.

The Working Group on Business and Human Rights speaks to a different audience entirely: states, yes, but also companies, investors, banks, and the supply chains that connect a mine in one hemisphere to a battery factory in another. Its currency is the UN Guiding Principles on Business and Human Rights — the three-pillar framework (state duty to protect, corporate responsibility to respect, access to remedy) that underwrites every human rights due diligence law, every ESG disclosure regime, and most of the risk language in extractive-sector loan covenants written in the last decade.

When this Working Group writes guidance on FPIC, it is not adding another voice to the chorus of Indigenous rights advocacy. It is formally relocating FPIC out of the “Indigenous rights standard” column and into the “test of business conduct” column. The report says as much directly: a business’s responsibility to respect Indigenous Peoples’ rights, including FPIC, “exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations… [a]nd it exists over and above compliance with national laws and regulations.” That single sentence, borrowed from Guiding Principle 11, is the entire report compressed into one line. Everything else is implementation detail.

Here is the legal nerve the whole document runs on. The report insists — repeatedly, almost pedagogically — on separating consultation as a procedural obligation from consent as a substantive requirement. “It is therefore essential to distinguish between consultation as a procedural obligation and consent as a substantive requirement,” the report states in paragraph 15. “Consent may be given or withheld, including with conditions, and may be withdrawn.”

This is not semantic housekeeping. For years, “we consulted the community” has functioned as a company’s get-out-of-jail card — a box ticked, a meeting minuted, a signature obtained under conditions nobody scrutinized too closely. The Working Group closes that door. Consultation is the process; consent is the outcome, and the outcome can legitimately be no.

The Annex makes the standard operational in a way that’s almost impossible to misread:

Free means no undue influence, coercion, intimidation, militarization, manipulation, bribery, fabricated consent, or retaliation for a no-consent decision — and safe participation, full stop.

Prior means before permits, concessions, or licences are granted; before contracts are signed; before surveys are conducted; before land is entered; before any business activity commences.

Consent means a collective, independent decision made through Indigenous Peoples’ own institutions — including the right to say no, yes with conditions, or to revisit the decision entirely if circumstances change or agreed conditions go unmet.

Consent, in other words, is not a milestone you pass. It’s a state you maintain.

3. Businesses cannot hide behind the state

This is the section that should worry every general counsel currently operating in a jurisdiction that doesn’t legally recognize Indigenous Peoples, or that uses euphemisms — “traditional communities,” “local populations,” “forest dwellers” — to avoid the term altogether.

The Working Group addresses this directly in paragraph 33: businesses “often inquire how to understand FPIC requirements where a State does not recognize the existence of Indigenous Peoples or uses different terminology to refer to peoples who self-identify as such.” The answer offered is unambiguous. The corporate responsibility to respect human rights is independent of state recognition. Where a state fails to identify or protect Indigenous Peoples, “businesses are expected to treat the absence of FPIC as a constraint on their ability to proceed with activities affecting Indigenous Peoples’ rights.”

Read that again slowly, because it removes the single most common defense in the extractive sector’s playbook. “The government didn’t classify them as Indigenous” was never a strong argument, but it used to be a survivable one. This report treats it as irrelevant to the question of whether the company can keep operating.

4. FPIC must come before concessions, permits and acquisitions

For anyone tracking transition minerals — lithium, cobalt, nickel, rare earths, copper — this is the operational core of the report. Human rights due diligence, the Working Group says, must begin at the outset of a project, and it must verify whether FPIC was sought and obtained before concessions or licences were issued, not retrofitted afterward as a communications exercise.

The report doesn’t stop at greenfield projects. Paragraph 37 addresses the acquisition scenario directly, and it’s the one that should be circulating in every M&A due diligence checklist for the mining sector right now: “This also applies if a business is taking over a concession. Where a business seeks to acquire a concession for which FPIC was not previously obtained, this situation may give rise to adverse human rights impacts.”

Buying your way into a clean legal position doesn’t work. If the FPIC failure happened under the previous owner, it travels with the asset. The acquiring company inherits the obligation to engage the affected Indigenous Peoples, determine remedies for the prior failure, and seek a fresh consent process for continuation. There is no statute of limitations on an unconsented land grab simply because the paperwork changed hands.

5. The right not to participate

This is the recommendation with the sharpest teeth, and it’s aimed squarely at states, not just companies. The Working Group recommends that states “do not compel Indigenous Peoples to participate in consultations aimed at seeking and obtaining FPIC. A decision not to engage in such processes must be respected and signifies that FPIC cannot be obtained. In such circumstances, business activities that may affect their rights should not proceed.”

The logic here is worth sitting with. Non-participation has often been treated by project proponents as a procedural gap to route around — hold the meeting, document the empty chairs, proceed anyway. The Working Group reframes silence as a decision. If Indigenous Peoples choose not to show up — because they distrust the process, because their institutions aren’t ready, because they’ve already said no in advance through their own protocols — that absence is not a loophole. It’s the answer. And the answer is that the project doesn’t go ahead.

6. Investors are now directly inside the frame

For years, capital has been the layer furthest removed from accountability in extractive supply chains — three steps back from the pit, protected by portfolio diversification and the fiction that financing a company is different from operating it. The Working Group’s recommendations to investors close that gap.

Investors, the report says, should “carry out human rights due diligence to ensure that FPIC is sought and obtained across the operations of their portfolio companies, including by requiring their investees to provide evidence that FPIC was sought and obtained.” And where that evidence doesn’t exist, or the requirement isn’t met: “refrain from investing or consider divesting.”

“This is a company matter, not ours” has been the standard institutional-investor response to FPIC controversies for as long as ESG screening has existed as a category. The Working Group is telling investors, in guidance-document language but unmistakable intent, that this position no longer holds. Evidence of FPIC becomes a due diligence artifact — something an investor should be asking for with the same rigor as an environmental permit or a tax clearance, and something whose absence should show up as a red flag before the wire transfer, not after the headline.

7. Why this matters for transition minerals

Everything above converges on the sentence buried in the Annex’s list of recurring problems, item (f): “Green colonialism,” where renewable energy, transition minerals, carbon, conservation, and infrastructure projects repeat harmful extractive patterns without meaningful consent.

That’s the line the whole report was, in some sense, building toward. The energy transition has been sold — to investors, to publics, to itself — as morally distinct from the extractive industries it’s meant to replace. Cobalt for batteries is not coal for power plants; a wind farm is not a strip mine. But the Working Group is naming, in an official UN document, what Indigenous Peoples’ organizations have been saying at Santa Marta, at the Permanent Forum, and in submissions to exactly this consultation: the pattern repeats. The land acquisition logic, the sequencing failures where impact assessments arrive after approvals, the parallel “representative” bodies handpicked to manufacture consent, the treatment of FPIC as a communications deliverable rather than a right — none of it disappears because the mineral in question goes into a battery instead of a blast furnace.

The critical minerals rush is not exempt from this framework. If anything, the report’s insistence that due diligence must start “at the idea/design stage and NOT when the project starts” is a direct answer to the transition-minerals sector’s most common failure mode: racing permitting timelines set by climate targets and offtake agreements, with Indigenous engagement treated as a schedule risk to be minimized rather than a right to be honored.

The question is no longer whether a company consulted Indigenous stakeholders. The question is whether Indigenous Peoples, through their own institutions, had the ability to grant, withhold, condition or withdraw consent before business activity proceeded.

FPIC is no longer a reputational safeguard sitting beside the project. In the Working Group’s guidance, it becomes an operating condition of rights-respecting business activity.

Source: UN Human Rights Council, “Guidance on the right of Indigenous Peoples to free, prior and informed consent in the context of business activities,” Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises, A/HRC/62/36/Add.2, 9 June 2026.