With land reforms ongoing in various countries in the Congo Basin, indigenous peoples are at risk of being left behind. The nature of indigenous decision-making and their relationship with neighbouring communities has a significant impact their rights, in particular their land rights. This is important to understand in the context of any attempt to improve legal frameworks for land rights, and should also be understood from a cultural and historical perspective.
In most countries in the Congo Basin, most indigenous communities are located within already granted logging concessions or protected areas. Protected areas have been created, covering between 9% and 28 % of national territories in all 5 countries. No indigenous community has a land title. Throughout the Congo Basin, indigenous peoples have traditionally practised a primarily hunting and gathering lifestyle, using vast tracts of land on a seasonal basis.
Indigenous peoples’ decision-making processes are often hard to define as they do not follow hierarchical, readily-identifiable structures easily visible to outsiders. However, research suggests that they do possess certain common characteristics. Social structures are generally non-hierarchical with little outward evidence of formal leaders or decision-makers. Instead, there are individuals who are recognised for their particular skills and related opinions. The generally consensual nature of many indigenous decision-making processes, and the low social status accorded to them in many areas means that their interests are overlooked in most negotiations regarding land rights.
This represents a challenge, meaning that when consideration is being given to issues concerning land rights, if they consult at all (which is rare), decision-makers often take the easy route of consulting with the recognised (usually non-indigenous) local chiefs, or selecting individuals to consult that may not have the backing of community consensus.
Another factor that complicates the debate on indigenous peoples’ land rights is their relationship with other communities: in most cases, this is still characterised by discrimination and subordination. Generally, indigenous peoples are marginalised economically and politically, and excluded socially, especially from decision-making processes. Their relationship with neighbouring Bantu communities is often deeply complex, in some cases as these communities have engaged in exchange relations for sometimes thousands of years. Bantu farmer attitudes towards indigenous peoples can be contradictory and vary from being extremely derogatory, to being acknowledged as ‘first-comers’ or ‘connoisseurs’ of the forest who often play a central role in traditional ceremonies and are admired for their hunting skills. But in general, widespread discrimination against indigenous peoples often leads to serious exploitation, including forced labour or practices akin to slavery. In this scenario, Bantu “masters” may control a number of indigenous people or families, with the so-called masters seeing themselves as “owning” the members of particular indigenous families from birth, and consequently having the right to the labour and loyalty of those indigenous people.
Understanding the complexities of this relationship is of central importance when addressing the lack of recognition of indigenous peoples’ land rights. In a complex patchwork of overlapping resource rights, land and resource rights are often not exclusive and there are often parallel systems in place. In many cases, indigenous peoples share the same spaces as other communities and therefore the areas in which they live are not culturally homogenous. Where they are increasingly becoming sedentarised, their settlements are attached to the villages of dominant ethnic groups, meaning that any limited land rights attached to local communities are generally not recognised by others as pertaining to indigenous peoples. Their marginalisation, coupled with generalised discrimination, means that they are not involved in localised decisions about lands. In the Congo Basin, there are some villages exclusively occupied by indigenous peoples. However, in general, the ‘Pygmy’ villages are only considered insofar as they form part of a larger Bantu village. Indigenous “camps” at the outskirts of Bantu villages are therefore often characterised by transitionality and marginalisation, even though they may date back quite far in time. Many Bantu groups consider “Pygmies” to be ‘squatting’ on their customary lands, and use of these areas is ‘sanctioned’ on a permissive basis only. In other areas, the patchwork of overlapping land and resource rights are often seen as not exclusive. In these cases, sharing of land and resources between farming and Pygmy groups may be tolerated or sanctioned by dominant communities.
The lack of official recognition of Pygmy villages or habitations has a series of political, economic and social implications, as well as implications for land rights. The lack of formal social structures and perceived low social status of indigenous peoples also means that most often, others claim the right to ‘speak on their behalf’. They are not represented by themselves but by the villages (and village chiefs) to which they are associated. In the case of the relationship between indigenous peoples and their neighbouring communities in the Congo Basin, the complexities of governance structures and land use are underpinned by unequal relations and discrimination, as well as various sedentarisation policies aimed at nomadic and semi-nomadic indigenous groups. This has the effect of creating a discursive environment where indigenous peoples’ rights are marginalised and often ignored. The situation is both reflected and exacerbated by legislative measures that fail to recognise the specificity of these groups.
For land reforms to fully recognise the rights of indigenous peoples, decision-makers must make efforts to ensure that they consult with indigenous peoples directly, and not with those who claim to speak on behalf as a result of the dynamic of inequality that characterises their relationship with other neighbouring communities. Too often, land rights considerations are discussed, and decisions are made without taking into account the potential conflicting claims to indigenous land by communities and individuals that claim to speak on behalf of indigenous peoples. Further, indigenous peoples are all-too-often excluded from consultations, with decision-makers preferring to discuss issues with those who claim to speak on indigenous peoples’ behalf, yet do not represent them. This also implies:
- Identifying and working directly with indigenous peoples’ own representatives instead of those who claim to speak on their behalf. These efforts should be in line with the recognised rights of inidgneous peoples outlined in the UN Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169.
- Demarcating indigenous peoples’ territories and their overlaps with other communities’ customary lands through participatory mapping directly with indigenous communities themselves.
- Identifying measures to secure indigenous peoples’ rights to land, and in areas where lands is considered customary land of one or more community, develop a rights framework that can accommodate these, taking into account the level of discrimination against indigenous peoples.
- Reviewing overarching national legislative frameworks and land designations that prevent indigenous peoples from possessing and owning land.
- Reviewing the understanding of customary law in Congo Basin countries and recognising indigenous population centres in their own right, accommodating their sometimes semi-nomadic nature.
- Bringing national land legislation in line with existing international law, and where applicable (for example in the Republic of Congo), with national laws on indigenous peoples’ rights.
 This is adapted from an article I wrote on land rights in the Congo Basin. See Thornberry, F., “Les droits fonciers des peoples autochtones dans le bassin du Congo – pour un meilleur cadre legal”. In, Bellier, I. (ed.), Terres, territoires, ressources : Politiques, pratiques et droits des peuples autochtones, Projet SOGIP, Ecole des Hautes Etudes en Sciences Sociales, Paris, 2015.
 Evidence shows that forced labour of indigenous peoples is widespread in Central Africa. See for example: African Commission on Human and Peoples’ Rights (ACHPR), 2005, Report of the African Commission’s Working Group on Indigenous Populations/Communities: Research and information visit to the Republic of Congo, September 2005; Observatoire Congolais des Droits de l’Homme, Les droits des peuples autochtones en République du Congo, London, 2006, p.30; Cooperazione Internationale (COOPI), 2006, Etudes de cas de discrimination, abus et violations des droits de l’homme envers les Pygmees Aka de la Lobaye, République centrafricaine ; African Commission on Human and Peoples’ Rights (ACHPR), and International Work Group on Indigenous Affairs (IWGIA), 2007, Rapport du Groupe de Travail de la Commission Africaine sur les Populations/Communautés Autochtones, Visite de Recherche et d’Information en République du Burundi, mars-avril 2005; ACHPR and IWGIA, 2010, Report of the African Commission’s Working Group on Indigenous Populations/Communities, Research and Information Visit to the Republic of Gabon, 15-30 September, 2007; ACHPR ad IWGIA, 2011, Rapport du Groupe de travail de la Commission africaine sur les populations /communautés autochtones – Mission en République du Congo, 15-20 mars 2010; Human Rights Council, 2011, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: The situation of indigenous peoples in the Republic of Congo, UN Doc. No. A/HRC/18/35/Add.5, July 2011; and Observatoire Congolais des Droits de l’Homme (OCDH), 2011, Les peuples autochtones de la Republique du Congo : discrimination et esclavage, Brazzaville.
 Thornberry, F., and Viljoen, F., Overview Report of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries, ILO Geneva and African Commission on Human and Peoples’ Rights, Banjul, 2009, P. 64.