A/HRC/18/35/Add.5 31. At the village level, Bantu chiefs invariably have had de jure and de facto authority over the villages in which indigenous people live alongside the Bantu majority, and also over the indigenous camps in proximity to Bantu villages. The authority of the Bantu village chiefs is, in practice, superior to that of any indigenous authority, due to the status of indigenous settlements under Congolese law, according to which the village is the lowest administrative entity in the country.11 A village is recognized by order of the prefect (arrêté préfectoral), who is the head of the department in which the village is located.12 The prefect (préfet) designates the village chief and defines his functions. Under this system, indigenous communities typically have not attained village status, and thus have only been recognized as camps attached to neighbouring villages with a Bantu majority. This situation has prevented indigenous peoples from appointing their own chiefs or participating in administrative decisions at the national level. However it should be noted that article 12 of the newly adopted Law No. 5-2011 on indigenous peoples provides for recognition of “indigenous villages within the process of creating local administrative entities.” 32. Marginalization from decision-making is further reflected in the State’s justice sector, which has developed without formal recognition of the indigenous justice systems. Although many indigenous communities maintained their own customary law systems and ways of resolving conflicts, these were not formally recognized by the State or incorporated into the administration of justice, until the adoption of the new law on indigenous peoples, which recognizes indigenous customary law (art. 11). I. Land and resource rights 33. Finally, the Special Rapporteur observes that indigenous peoples rarely hold any formal title or guaranteed rights to the lands and natural resources that they have traditionally used or occupied. The Congolese land administration law instructs the relevant authority to use its legal and financial means to eradicate “unproductive” lands and considers any lands that are not “visibly” occupied and used as vacant and under State ownership. Such “vacant” lands can be allocated following a vacant land survey.13 These provisions pose potential problems for indigenous peoples who use and access their lands according to traditional practices, yet may still find their lands designated as vacant or unproductive. 34. The Land Law recognizes some collective and customary property rights, insofar as they are not incompatible with registered title deeds, and provides for title to lands recognized as customarily owned or occupied to be delivered to persons acting on behalf of their communities.14 However, determination of customary rights falls to an “ad hoc organ established at the local level and registered with the tax authority”;15 there does not appear to be a provision in the Land Law to involve affected indigenous peoples in the process of determining collective and customary property rights. Apart from the Land Law, the Government reports that it is developing special procedures to consider applications by indigenous peoples or persons of their customary land rights, on the basis of provisions of 11 12 13 14 15 10 Law No. 3-2003 of 17 January 2003. Decree No. 2003-20 of 6 February 2003. Law No. 10-2004 of 26 March 2004 on the General principles applicable to State lands and land tenure (“Land Law”), art. 51. See also art. 6, which identifies the State as the sole owner of the soil and sub-soil, which it can allocate to different uses as it sees fit. Ibid., arts. 9, 23-34. Ibid., art. 35.