DRC reaffirms its commitment to Free, Prior and Informed Consent (FPIC)
The TFD Field Dialogue on FPIC and REDD in the Democratic Republic of Congo 21 – 25 May 2012
In May, Forest Peoples Programme (FPP), along with national partners Action pour le Developpement, l’Environnement et la Vie (ADEV) and Cercle pour la Defense de l’Environnement (CEDEN), hosted The Forest Dialogue (TFD) on Free, Prior and Informed Consent (FPIC) in Kinshasa, the Democratic Republic of Congo (DRC). The meeting was the second in a planned series of field dialogues with the main aim of exploring how, in practice, government agencies, commercial enterprises and non-governmental organisations should respect the right of indigenous peoples and local communities to give or withhold their free, prior and informed consent, as expressed through their own freely chosen representative organisations, to activities that may affect their rights.
The Kinshasa TFD Field Dialogue was sponsored by the FPP project entitled: REDD financing, Human Rights and Economic Development for Sustainable Poverty Reduction of forest communities in the DRC (for more information on this project visit: http://www.forestpeoples.org/topics/redd-and-related-initiatives/news/2011/10/swedish-international-development-agency-supports-f).
The aim of this project is to ensure that the hundreds of rural forest communities who will be most affected by REDD pilot initiatives on the ground across the DRC will be able to protect their rights and maximise the benefits they receive from these schemes, while helping to create an enabling environment for long-term rural economic development in their areas. i.e. making REDD work for local people.
The Kinshasa TFD dialogue focused on how the right to FPIC should be respected in the national programme to reduce emissions from deforestation and forest degradation (REDD), and in particular, how REDD project promoters can protect community rights to FPIC while maximising the benefits that communities receive from REDD pilots targeting their customary lands. (To read the TFD Background Paper, visit: http://environment.yale.edu/tfd/uploads/TFD_FPIC_DRC_Backgroundpaper_en%281%29.pdf).
The meeting included a visit by international visitors to the Luki Biosphere Reserve in Bas Congo, which is a REDD Pilot Project area targeted by funding from the Congo Basin Forest Fund. During the visit to Luki Reserve the visiting international experts took the opportunity to hold discussions with dozens of local community members living within and around Luki Reserve, as well as with members of its management committee, in order to gain insight about the reality of REDD projects on the ground in the DRC, and particularly on the dilemmas faced in applying the FPIC concept in REDD pilot areas. To read the Field Report from the Luki Biosphere Reserve visit: http://environment.yale.edu/tfd/uploads/EN_Field%20Report.pdf. The field discussions in Bas-Congo, which were held 21-23 May, helped to nourish insights and debates during the Kinshasa-based dialogue on Thursday and Friday (24 and 25 May) which brought together over 75 participants from a great variety of backgrounds including indigenous peoples, local communities, non-governmental organisations, development agencies, government bodies and the private sector.
The Kinshasa meeting was opened on behalf of the Ministry of Environment, Nature Conservation and Tourism by the Secretary General Mr. Albert LIKUNDE Li BOTAYI. In his opening advice to participants, he noted that FPIC was already recognised in international instruments such as the UN Declaration on the Rights of Indigenous Peoples, and reminded dialogue participants that in order to achieve the main objectives of the REDD+ process, as part of the DRC’s strategic approach to poverty alleviation, “the emphasis must be on participation and transparency, and on recognising and respecting the rights of all stakeholders, including local and indigenous communities, at every stage of the REDD process in our country…”. The Secretary General noted the need for national reforms in DRC and that FPIC must be embedded in the second phase of the national REDD programme. To this end a multi-stakeholder collaboration would be needed to develop a common approach to FPIC, involving both national and international agencies involved in REDD, with a clear definition of the roles and responsibilities of each party. This would also need to be communicated to the international agencies supporting the REDD programme in DRC.
FPIC “refers to the right of local and indigenous peoples to give or withhold their free, prior and informed consent to activities that may adversely affect their rights to their land, territories and other resources. FPIC has become a key principle of international law and of jurisprudence in relation to indigenous peoples.”
DRC is a signatory of various regional and international conventions and other human rights instruments including those which require respect for customary rights to lands and to FPIC. Relevant treaty bodies which oversee compliance with these conventions and/or treaties have repeatedly called on DRC to revise its laws and policies to ensure that these rights are respected. The current Forest and Mining Codes require that companies obtaining exploitation rights should consult with local communities, and provide compensation (cahiers de charges), but the right of communities to FPIC is not secured.
During two days of lively discussion and debate dialogue participants worked through a wide range of issues such as the barriers to FPIC implementation in the DRC, the close linkages with mechanisms to protect the rights of communities, the potential legal reforms, project transparency and benefit sharing.
Serious commitments from the key players - government and private sector - were made, not only to apply FPIC to all REDD projects in DRC, but also to develop the means of making this commitment meaningful. However, making the commitments effective on the ground is another task.
A range of recommendations were formulated by participants to create an enabling environment for FPIC effective implementation. A strong government leadership coupled with effective participation and contribution of all stakeholders is needed for FPIC to become a reality in DRC. The view was shared that FPIC needs to be made mandatory for the whole national REDD programme in DRC, even if it is not yet required by law, but the requirement for FPIC should apply to all sectors not just REDD. On the other hand, it was noted that there was a need for flexibility in the way FPIC was respected, adjusted to local circumstances and cultures. FPIC should not be prescriptive, as the whole point is that it allows for bottom up engagement in decision-making through self-chosen representatives and self-chosen processes.
During the plenary discussions participants stressed the importance of clear land rights, the need for a national law on freedom of information, more consideration of gender aspects, and provisions for conflict resolution. Particular attention needs to be paid to redressing power imbalances between stakeholders, but also, inequalities within communities and in custom should not be ignored, considering for example the extreme marginalisation of indigenous peoples or so-called ‘Pygmies’ in DRC.
One proposal is to carry out a collaborative legal review to examine in more detail what aspects of national law would require reform to make respect for FPIC effective. It is agreed that national legal reforms are required to ensure DRC laws conform to the country’s international obligations. A multi-stakeholder group should also work to develop national guidance suited to the circumstances of DRC to make FPIC effective. Some thought this could build on a draft document developed for DRC by WWF, although others thought this document had some serious deficiencies.