A/HRC/18/35/Add.5
79.
The land and resource rights provisions of the Indigenous Rights Law go well
beyond what is provided in the previously existing laws – in particular the land and
forestry codes29 – which together have comprehensively defined property or use rights
in land and natural resources.
80.
The Government will need to develop and fully implement a new procedure for
demarcating and registering lands in accordance with indigenous peoples’ customary
rights and tenure, and new mechanisms for identifying and securing specific rights in
natural resources. These measures, which should be developed in consultation with
indigenous peoples, will require substantial funding, technical expertise and dedicated
personnel.
81.
The Republic of the Congo should look to other countries that have longstanding work on indigenous land rights regimes, and experience in developing laws
on indigenous land tenure. The United Nations agencies should provide technical
assistance to facilitate this undertaking.
82.
Additionally, the Government will need to ensure that all administrative
practices and the application of all laws related to lands and natural resources align
with the Indigenous Rights Law, interpreted in light of international standards
concerning indigenous peoples’ rights to lands, territories and resources. To this end,
the Government should establish a mechanism to undertake a comprehensive review
at the national level of all such laws and relevant institutions and procedures.
Enhancing participation in decision making
83.
Essential to implementing all aspects of the initiatives being taken to advance
the rights of indigenous peoples in Congo is enhancing indigenous participation in
decision-making. This requires, in accordance with the United Nations Declaration on
the Rights of Indigenous Peoples, building greater opportunities for indigenous
peoples to participate in decision-making processes of State institutions at all levels, as
well as recognition, strengthening and accommodation of indigenous peoples own
decision-making institutions and authority. Indigenous participation in various
dimensions is instrumental to the right of self-determination and the empowerment of
indigenous peoples to control their own destinies under conditions of equality.
84.
The Indigenous Rights Law mandates the Government to establish by decree a
procedure for consulting indigenous peoples regarding development projects or other
measures that affect them (art. 3). Such a decree should itself be developed in
consultation with indigenous peoples, which will require a coordinated effort with
indigenous leaders, as well as among interested Government actors.
85.
The Special Rapporteur urges the Government to proceed with urgency to
develop and adopt the consultation procedure required by the Indigenous Rights Law,
in cooperation with indigenous peoples’ representatives. Given the complexities
involved, the Government will have to secure adequate technical expertise to ensure
effectiveness of the procedure, and its concordance with international standards.
Care will have to be taken especially to ensure that the consultation procedure is
devised to have as its objective – in accordance with article 3.6 of the Indigenous
Rights Law and article 19 of the Declaration on the Rights of Indigenous Peoples – the
obtainment of free, prior and informed consent.
29
20
Forestry Code (Law No. 16-2000 of 20 November 2006); Land Law (Law No 10-2004 of 26 March
2004).