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«Local Communities’ and Indigenous Peoples’ Rights to Forests in Central Africa: From Hope to Challenges Samuel Assembe-Mvondo Abstract: This ...»

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Africa Spectrum 1/2013: 25-47

Local Communities’ and Indigenous

Peoples’ Rights to Forests in Central Africa:

From Hope to Challenges

Samuel Assembe-Mvondo

Abstract: This paper reviews the various rights of local communities and

indigenous peoples over forest resources in Central Africa. Indeed, in 2010,

the Council of Ministers of the Commission des Forêts d’Afrique Centrale (COMIFAC) adopted the Subregional Guidelines on the Participation of Local Communities and Indigenous Peoples and NGOs in Sustainable Forest Management in Central Africa. A survey of this subregional legal instrument highlights a genuine commitment by states to consolidate the benefits and the emerging rights that can improve the living conditions of vulnerable communities and strengthen the subregional regime of sustainable forest management. However, the effectiveness of the subregional guidelines hinges on the administrative acts and practical measures of member states to incorporate this instrument into their domestic legal systems and to enforce it.

„ Manuscript received 3 September 2012; accepted 7 February 2013 Keywords: Central Africa, international cooperation of regions/local communities, civil rights/human rights, forest, forestry, customary law Samuel Assembe-Mvondo is a postdoctoral research fellow at the Centre for International Forestry Research (CIFOR), based at the CIFOR Central Africa Regional Office, Yaoundé, Cameroon. His main research interests are forestand land-tenure governance, REDD+ and FLEGT policies, local communities and indigenous peoples’ rights, environmental law and policies and the socio-economic impacts of benefit-sharing in Central African countries.

E-mail: s.assembe@cgiar.org „„„ „„„ 26 Samuel Assembe-Mvondo The forest policies and laws of Central African countries have established participatory management as a linchpin of sustainable forest management and poverty alleviation (Nguinguiri 1999; Trefon 2008). In view of policies recommended by the international community, however, the current approach to participatory management is inconsistent, and the practice of sustainable implementation inadequate (Topa et al. 2009). Furthermore, the national mechanisms set up and implemented in the framework of the Central African Forests Commission (COMIFAC – Commission des Forêts de l’Afrique Centrale) member states are inconsistent and divergent. To overcome shortcomings in mechanisms designed to involve local stakeholders in forest management, COMIFAC, with the financial support of the UN’s Food and Agriculture Organization (FAO), prepared the Subregional Guidelines on the Participation of Local Communities and Indigenous Peoples and NGOs in Sustainable Forest Management in Central Africa.1 These guidelines, central to negotiations among experts from all member states for more than two years, were adopted during the 6th Ordinary Session of COMIFAC’s Council of Ministers held from 10 to 11 November 2010 in Kinshasa, Democratic Republic of the Congo (DRC).

The adoption of regulations to govern the participation of local communities and indigenous peoples in forest management in Central Africa is not an isolated occurrence. It is part of the global trend to grant local communities and indigenous peoples rights and genuine powers over the management of natural resources. It is clear that International Labour Organization (ILO) Convention No. 169 (adopted in 1989), the 1992 Rio Earth Summit, and the 2007 United Nations Declaration on the Rights of Indigenous Peoples have inspired Central African states. Furthermore, the need to combat climate change by adapting strategies and REDD+ mechanisms 2 under negotiation have revived the global debate on the rights of local communities and indigenous peoples (Sunderlin et al. 2009; Cotula and Mayers 2009; Karsenty and Ongolo 2012). This subregional regulation can also be seen as a collective response by COMIFAC member states to mitigate the negative impacts on the local population caused by the “land-grabbing” phenomenon that is linked to increased large-scale agricultural investments in forest zones in the Congo Basin (Karsenty 2010; Nguiffo and

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Schwartz 2012).3 In addition, at the subregional level, the guidelines are aligned with what should henceforth be regarded as the process of formulation of a subregional, sustainable forest-management regime, which in fact heralds the advent of a genuine and harmonized forest law in this subregion.

This contribution reviews the various forest rights of local communities and indigenous peoples in the Central African subregion provided for by the new regulations. The paper takes an a priori approach with some illustrations based on historical and current facts. First, the paper presents the legal framework governing forests in Central Africa. Second, there is a summary of the different rights contained in the subregional guidelines. Third, there is an analysis and discussion of progress, including possible consequences of the new legal instrument on the laws of member states and the main beneficiaries.

Subregional Regime Framework of Sustainable Forest Management in Central Africa According to Tarasofsky (1999), the international forest regime implies the existence of a set of international and regional laws governing the management of forest resources. Although the existence of a global forest regime has been questioned (Smouts 2008), arguments supporting its reality have recently been demonstrated (Rayner et al. 2010). The dynamics of inter-state actions in the Central African subregion in favour of sustainable forest management seem to confirm the existence of a set of binding and soft legal instruments governing forest ecosystems (Assembe-Mvondo 2006a).

The Treaty on the Conservation and Sustainable Management of Forest Ecosystems in Central Africa, which established COMIFAC, came into force in late 2007 after its ratification by two-thirds of the parliaments of the ten member states.4 It serves as the constitution of the subregional regime of the Congo Basin forest resources (Assembe-Mvondo 2009). In addition, two other important legal instruments were adopted during the meeting of COMIFAC’s Council of Ministers held in Brazzaville in October 2008 – namely, the Subregional Agreement on Forest Control in Central Africa, and the Subregional Guidelines on the Sustainable Management of Non-Timber Forest Products (NTFP). The formulation of these two instruments was financed by FAO. This list of legally binding instruments that henceforth

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reinforce the sustainable forest-management regime includes the aforementioned Subregional Guidelines on the Participation of Local Communities and Indigenous Peoples and NGOs in Sustainable Forest Management in Central Africa, adopted in November 2010 by the Council of Ministers.

The first Summit of Central African Heads of State on the Conservation and Sustainable Management of Tropical Forests, held on 17 March 1999, led to the issuing of the Yaoundé Declaration, in which Central African states clearly expressed their commitment to the principles of biodiversity conservation and sustainable management of their forest ecosystems.

The Yaoundé Declaration is fundamental, but it does not seem to add anything new to the fundamental law (McDermott et al. 2010). In fact, the Treaty of Brazzaville of 2005 serves as the constitution of COMIFAC. The resolution adopted by the heads of state during their second summit in Brazzaville on 5 February 2005 also falls within the category of “flexible” acts of law. Along those lines, the 2005 resolution reaffirms the commitment made in the Yaoundé Declaration in 1999, and gives a new institutional orientation to subregional cooperation with the signing of the treaty and the adoption of the Convergence Plan, the main working document of COMIFAC.

COMIFAC is responsible for the subregional framework for sustainable forest management. In fact, according to Article 5 of the Treaty of Brazzaville from 2005, a subregional organization known as the “Central African Forest Commission”, abbreviated as COMIFAC, is hereby established to implement this Treaty. COMIFAC is responsible for spearheading, harmonizing and monitoring policies on forests and the environment in Central Africa.

This subregional organization is headquartered in Yaoundé (Cameroon).

COMIFAC comprises three main bodies: 1) the Summit of Heads of State and Government, 2) the Council of Ministers and 3) the Executive Secretariat. Decision No. 3 A/CEEAC/CCEG/XIII/07 of the Economic Community of Central African States (ECCAS) henceforth considers COMIFAC as a specialized agency focused on forest-management policies. One of the main contributions of COMIFAC to global negotiations is the proposal to integrate forest degradation in future multilateral mechanisms to mitigate the effects of climate change, thus progressing from a simple “RED” (Reducing Emissions from Deforestation) to “REDD” during the Conference of the Parties held in Bali in 2007 (Karsenty 2008). Moreover, during the 28th session of the SBSTA (Subsidiary Body for Scientific and Technological Advice of the United Nations Convention on Climate Change) in 2008, COMIFAC countries requested the explicit inclusion of: 1) conservation and sustainable „„„ 29 „ „ „ Forest Rights in Central Africa forest management in the REDD mechanism and 2) the improvement of forest carbon stock (forest plantation and agroforestry) within the REDD mechanism. It is these new elements that helped to a certain extent to establish the current REDD+ skeleton at the Copenhagen and Cancun Climate Change Conferences (Tadoum et al. 2012).

The Congo Basin in Central Africa is the second-largest rainforest in the world after the Amazon (CARPE 2005; CBFP 2006). The biodiversity of the Congo Basin has both global and regional significance in view of both its global climate regulatory effects and the vast natural resources it contains, especially for the more than 30 million people whose livelihoods depend on it (FAO 2007). COMIFAC is expected to harmonize the divergent political views of its member states and to defend a common vision at global debates on forest resources and related issues, such as the fight against climate change.

Local Communities’ and Indigenous Peoples’ Rights Provided by the COMIFAC Guidelines The instrument (the guidelines) comprises two main parts and two annexes dealing, respectively, with terminological clarifications and major innovations induced by the subregional regulation. The second part of the guidelines, which contains the basic rights of local communities and indigenous peoples, is subdivided into nine major principles, 39 guidelines, and a list of priority actions to be carried out by each COMIFAC member state. The guidelines appear to be in line with Component 7.21 of the Convergence Plan adopted by the heads of state in Brazzaville in 2005 which seeks to ensure by 2015 forest ecosystem conservation and reduction of poverty in Central Africa by effectively involving local communities and indigenous peoples and NGOs in forest management and recognizing and consolidating the power and rights of local communities and indigenous peoples and NGOs in forest management.

Six of the nine principles contained in the subregional legal instrument provide for the rights of local communities and indigenous peoples. The last two principles deal with issues concerning bodies in charge of promoting the participation of rural communities in forest management. The table below summarizes the various rights local communities and indigenous people are recognized as having by the COMIFAC instrument. From this perspective, it is

possible to make the following distinction among the listed rights:

1. consolidated rights, which refer to those rights that are already mentioned in current, post-Rio Conference forest legislation, whose content „„„ „„„ 30 Samuel Assembe-Mvondo the COMIFAC guidelines appear to only improve upon or re-emphasize;

2. re-established rights, those rights that were removed by many statutory legislations after the independence of Central African countries despite their resilience in the form of de facto practices (the COMIFAC guidelines are explicitly mentioned and provide them with content); and

3. emerging rights, those rights derived from the newly established mechanisms, which have not yet been implemented (for example, REDD+ rights, FLEGT, FPIC, VPA, etc.5).

Table 1: Various Rights of Local Communities and Indigenous Peoples Recognized by the COMIFAC Guidelines

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Review of Local Communities and Indigenous People’s Rights Provided for by the COMIFAC Guidelines To better understand these guidelines, it is necessary to summarize the situation that has prevailed since the colonial period in the Central African subregion.

From the Complexity of Customary Ownership to the Simplification of User Rights Before the colonial period, relations between local forest communities (which also includes ethnic Bantu tribes) and the natural spaces that make up their natural habitats generally hinged on four systems of access and ownership (Kouassigan 1982; Diaw 1997; Diaw and Oyono 1998): 1) collective ownership of all anthropoid spaces; 2) individual control of farmlands, water and some tree species; 3) free access to some major rivers, arid zones, roads and special products; 4) limited access to a common pool of resources like wildlife, forest products, NTFPs, some streams and natural forests.

These systems of access comprised a series of collective and individual customary rights (Binet 1951; Le Roy 1982; Diaw 1997): genealogical rights based on le droit de hache (wood-chopping rights) or being the first occupant;

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