Article 36 of the Forest Code stipulates that “forest use rights of populations living inside or near the forest domain arise from local customs and traditions, providing that they are not contrary to the law and public order. They allow for the exploitation of forest resources by these populations, with a view to satisfying their domestic, individual or community needs.” Only the right of use of communities is recognised by the Forest Code, which establishes the primacy of written law over customary law. Indeed, even though the Forest Code broadly recognises the customary and traditional use rights of local and indigenous communities, it also affirms that the forests are State property and makes no mention of customary or traditional authorities that are mentioned in the Constitution. However, the social clauses of agreements signed between forest concessionaires and local communities explicitly aim to compensate communities for the exploitation of the forests over which those communities hold customary rights.
The Draft Decree on Community Forests recognises the right of the local communities and indigenous peoples who claim ownership of the forests from the State, but the text has not been signed yet. The Minister of the Interior has previously indicated that some customary authorities are opposed to the decree due to fears that it may jeopardise their rights to exploit resourses. Nevertheless, the new government seems more disposed to this decree, especially following pressure from international donors and appeals by civil society stakeholders, together with a greater awareness of customary authorities at local level.
Furthermore, the process of macro-zoning started in the DRC in 2012, but without clarifying if the communities will be consulted on land use through a process of micro-zoning that respects the notion of free, prior and informed consent that is able to identify the traditional and customary use of forests by communities. Nevertheless, civil society is more and more involved in the steering committee for the national zoning plan.
|Title||a. Law no.011/2002 of 29 August 2002 on the Forest Code,
Ministerial Order no. 023/CAB/ECN-T/28 /JEB/10/ of 07 June 2010 establishing the model for agreement constituting the social clause of the specifications of the forest concession contract.
|Organisation||Ministry of the Environment, Conservation of Nature and Tourism|