"Briefing sur le d�veloppement rural en Afrique Centrale Acc�s � "
Briefing on rural development in Central Africa Access to land, the acquisition of land and rural development: new issues, new opportunities Yaounde, Cameroon, 27–28 September 2010 Governance of large-scale agricultural investment: The DRC case Augustin M. MPOYI Expert on policy and legislation on the environment and natural resources contents Presentation of the DRC The status of the land and the way this affects the governance of the land in the DRC. The Congolese legal system with regard to large- scale investment in land. Snapshot of large-scale agricultural investment in the DRC. Directions for reform to incorporate the new issues associated with large-scale investment in land. Brief overview of the DRC The Democratic Republic of the Congo: A central African country with a land area of 2,345,409 km2; The estimated population in 2007 was 65,835,000 inhabitants, with a population density of 27 persons per km2; Brief overview of the DRC Almost 80% of the population live in rural areas where the main activities are: agriculture, fishing and stock rearing; The tropical rainforest covers over 49% of the surface area of the country, some 1,000,000 km2, where the population density averages barely 0.2 people per km2; Brief overview of the DRC 135 million hectares of agricultural land, 34% of the national territory, of which only 10% is worked; An agricultural policy and rural development report was drawn up in December 2009, giving rise to the national strategy for the agricultural sector and rural development in April 2010; a new code of agriculture planned to place the agricultural and rural sector at the heart of development strategies and socio-economic organisation Brief overview of the DRC Within this project, one entire section has been devoted to energy and biofuels The Government intends to support the development of large-scale farming by setting up an incentive policy of regulation and finance With this in mind, it is planning to develop agricultural land allocation schemes However, these schemes must take account of the status of the land in the DRC The status of the land and how this affects the governance of the land in the DRC The land and natural resources are subject to a state- controlled system and effectively belong to the State: this is established in the Constitution and developed in sector-based law. In actual fact, the DRC Constitution of February 18 2006 declares that the Congolese State exercises permanent sovereignty in particular over the soil, what lies beneath the soil, the waters and the forests, the air space, the rivers, lakes and coasts, as well as the Congolese territorial seawaters and the continental shelf. However, it leaves it to the law to define the terms and conditions of the management and allocation of the aforementioned State-owned territory. The status of the land and how this affects the governance of the land in the DRC It falls to the various sector-based laws (lands, mines, water resources, hydrocarbons, fauna) to organise the management and terms and conditions of the granting of State territory, while reaffirming the complete principle of public appropriation of land and all natural resources. However, the reaffirmation of the principle of public appropriation is associated at the same time with the recognition of traditional rights (customary practices) of the local communities over areas (land and resources), thus giving rise to the Congolese dual land tenure system and overlapping rights to the same land (State- owned property and customary possession or occupation by the communities). The status of the land and how this affects the governance of the land in the DRC The recognition of these traditional rights has led to limitations being placed on the principle of State ownership These limitations take the form of legal guarantees provided by a variety of Congolese laws intended to protect traditional rights to land and the resources provided by these areas; they are listed below: The State may not legally grant exploitation (or concessionary) rights to land without prior consultation (land vacancy enquiry as far as land tenure is concerned; public enquiries as regards the forests); The status of the land and how this affects the governance of the land in the DRC No forested land can be categorised without consultation in the form of a public enquiry, and where appropriate, without compensation (nothing is said about protected zones other than forest); No expropriation of customary occupation rights is permissible without compensation (law on expropriation); Income generated by the exploitation of local resources is shared: social clause in the specification for forests, agreement on contribution to local development for mines, a practice in evidence for hydrocarbons despite the fact that the law is silent on this issue, as it is regarding land tenure and the law on nature conservation Refunding of a proportion of tax The status of the land and how this affects the governance of the land in the DRC No important decision can be taken without the involvement of the local communities concerned (CCN and CCP for the forests, water resources, framework act on the environment, fishery resources; not yet as regards land tenure, agriculture, mines, and hydrocarbons); A prohibition on any action, agreement, convention, arrangement or any other event, which results in the deprivation of the nation, physical persons or corporate bodies of all or part of their own means of existence drawn from their resources of their natural wealth (article 56 of the constitution): Despoliation is punished by the law, notwithstanding international provisions regarding economic crime; High treason, if the abovementioned actions, or attempts thereto, are perpetrated by an individual in a position of authority. The Congolese legal system with regard to large-scale investment in land Very little has been organised within the current DRC land management systems to tackle large- scale investment in land for agricultural purposes; the very least which can be said, is that: they are legally required to consult the communities in possession via the land vacancy enquiry procedure (article 193 et seq. of the land tenure law); this is a guarantee against the violation of pre-existing rights to the land being sought; This results in the mapping of the area in question and entry in the land registry as well as exclusive rights to use the site by the beneficiary; The Congolese legal system with regard to large-scale investment in land The outcome is that a 5-year temporary occupation contract is signed with the Republic; definitive title for 25 years (land concession) is only granted following the conclusion that the area in question is profitable; However, a mountain of evidence exists to demonstrate the fact that the DRC is not sufficiently prepared to tackle these new types of investment (agribusiness): On the social level, there are inadequate guarantees for traditional rights, which translates to: A theoretical consultation laid down in articles 193 et seq.: the land can be transferred without their consent if they fail to reach an understanding with the third party seeking the land within six months (article 203) The Congolese legal system with regard to large-scale investment in land The text thus excludes the right to prior consent on the part of the local communities in possession of the land being sought; Indeed, to the contrary, the local communities have no right to oppose the granting of a concession or rights to exploit the land they occupy under customary systems; The land tenure law does not allow the communities the right to share the income from the exploitation of local lands, specifically requiring (following the example of Congolese forest law): the prior signing of agreements with the local communities with regard to the social aspect of their investment, plus the formalisation and standardisation of all negotiation processes regarding such agreements and the way they are implemented; The Congolese legal system with regard to large-scale investment in land Moreover, the land vacancy enquiry procedure as organised by the abovementioned law of July 20 1973 offers no guarantee of compensation following the loss of customary land tenure rights when the enquiry leads to the lands they occupy being granted to third parties. This means that land tenure rights contradict the provisions of article 56 of the Constitution; As far as urban land is concerned, the land tenure law has provided for a State management system for private property which provides for the registration and entitlement of land and real estate rights for the benefit of all physical persons or corporate entities under private or public law, on the basis of a plan made out by the Minister for Urban Planning, taken over by the Minister for Land Tenure. The Congolese legal system with regard to large-scale investment in land However, nothing has been provided as regards rural land, occupied by local communities, representing over 70% of the Congolese population; These lands can be neither registered nor title established for them. They continue to be governed by local customs and usages (articles 387 to 389 of the land tenure law of July 20 1973); Even when compensation is paid, it complies with no official standard and meets no common measurement as to the amount of the land sought and the profits accruing to the investor; Congolese land tenure law provides no institutional systems for involving the general public in decision-making regarding land, as in the Forestry Code; The Congolese legal system with regard to large-scale investment in land On the environmental level, the DRC still has no framework act on the environment, nor any national policy document on environmental protection, providing for environmental impact assessments for all infrastructure, land or natural resources exploitation projects; this means there is a considerable danger of having to become involved in large- scale land investment schemes (Note the criticism levelled by environmentalists regarding the conversion of forested land into agricultural land, with nothing done to alleviate or repair the damage); However, a framework bill on the environment is about to be passed into law, have already been passed by the two chambers of the Parliament. The Congolese legal system with regard to large-scale investment in land At the business environment level, despite the efforts made at the macroeconomic level in 2010 to improve the business climate (several laws have been passed and/or amended with this in mind), the legal land tenure system in the DRC continues to provide fewer incentives than anywhere else in Africa: Land grant systems have still, to this day, not been adapted (centralisation of the rural land allocation system, endless procedures which are ultimately very expensive, the limitation of the concession life to 25 years, repossession of the real estate at the end of the contract without compensation, etc.); Poor governance (corruption, cronyism, legal immunity, etc.) which is cold comfort for investors; Lack of an agricultural land registry, usable as a tool for planning and monitoring land granted for agricultural purposes, etc. Snapshot of large-scale agricultural investment in the DRC Many applications have been made for land to be used for large-scale agricultural purposes, but very few turn into grant contracts for the reasons and restrictions listed above connected with the lack of incentive provided by the country’s land tenure system; which leads to the lack of enthusiasm on the part of the applicants; The following table shows a list of the few large-scale agricultural investment projects according to whether the concessions have already been made and are up and running, or are not yet operational. Snapshot of large-scale agricultural investment in the DRC Company Area granted Area under Province Locality Type of name production agriculture Titles already effective Company 10,000 ha 2,000 ha Katanga Lubunda Maize Terra Company 4,000 ha 4,000 Equator Gemena Hevea, palm MILUNA, Guaka oil, cocoa PHC Titles not yet operational, but which have been started Company 3,000,000 100,000 Equator Bikoro Palm Z.T.E ha Groves International negotiated 250,000 Equator Gemena, Sustainable , but not under Kungu and foodstuff yet discussion Libenge production granted Snapshot of large-scale agricultural investment in the DRC Company Area Area under Province Locality Type of name granted production agriculture Titles already effective Novacel 8,000 ha 2,000 ha Kinshasa Bateke acacia Plateau Titles planned, but where a land concession has yet to be made The 109,000 - Bandundu - Brussels- Capital Region BCI 100,000 ha - Equateur - and Kasai Oriental Reform guidelines… to improve the system On the political level, tackle political, legislative and institutional reform of the Congolese land tenure system, to incorporate the new issues and the new land tenure challenges associated with climate change (forestry plantation), landlessness and new agribusiness prospects; Adopt a land allocation plan, involving all the ministers concerned with land allocation (land-focused businesses, mining, hydrocarbons, the environment and nature conservation, agriculture and water resources); Reform guidelines… to improve the system Reorganise the system of the allocation of powers with a view to empowering provincial and local authorities, and upgrading their powers with regard to the land areas to be allocated; Set up systems for inter-institutional discussions between the various ministers involved in the allocation of land; Strengthen the technical capabilities of the administrations concerned at all levels (central, provincial and local) Reform guidelines… to improve the system Reorganise the land registries and land and real estate title archives in order to ensure that they can be freely consulted; computerise the land management system and place the system on the internet; On the social level, continue with the protection of the local communities’ traditional rights to land, by: Incorporating into land vacancy enquiries (before rights to the land are allocated) firstly the idea of FPIC (free, prior and informed consent) with regard to the communities, and secondly, participatory mapping. Participatory mapping is a land management tool intended to protect pre-existing land tenure rights, in particular those of local communities and indigenous peoples (CL and PA) which continue to be mainly customary rights; Reform guidelines… to improve the system This advocates negotiation between land users with the aim of reconciling pre-existing use with those which are envisaged; The forestry sector is the first to take the initiative by institutionalising mapping in the framework of the national forest area zoning programme by adopting a system of registration and title allocation to traditional land rights, along the lines of the Congolese forest right (local community concessions); by promulgating compensation systems for losses of traditional rights over land under application or in protected zones; this should take place well in advance of any decisions. Reform guidelines… to improve the system by guaranteeing for local communities and organising for their benefit a right to share in the income produced by large-scale land investment, along the lines of those laid down in the Forestry Codes (social clause in the specifications) and the Congolese Mining Codes (report on discussion on the contribution made by mining investors to socio-economic development); by setting up systems whereby the people are involved in land governance and decision-making via consultative bodies, called upon to give opinions on decision-making procedures on land- tenure questions; These bodies would take responsibility for the participatory management of the land sector and would ensure that all parties concerned with land governance would be involved; Reform guidelines… to improve the system by setting up institutional mechanisms for arbitration, mediation, the prevention and settlement of local disputes associated with land and natural resources, along the lines of those established by forestry law (see decree No. 103/CAB/MIN/ECN-T/15/JEB/09 of June 16 2009 pertaining to the organisation and functioning of the Forestry Disputes Settlement Commission); this must all take place upstream of any appeal to the courts; On the environmental level, by quickly completing the process of the adoption of a framework act on the environment and swiftly issuing it with application measures as soon as it is passed; the advantage of the current bill is that it ushers in the following innovations: Reform guidelines… to improve the system It retains the public enquiry as the method of consulting the public to ensure their involvement in the decision- making process; It requires an environmental and social impact assessment for all projects relating to development, infrastructure, the operation of any industrial, commercial, agricultural, forestry, mining or any other unit, involving activities which may, because of the nature or means of production used, risk the contamination or degradation of the environment It proposes the establishment of a National Social and Environmental Development Agency designed to manage the environmental and social assessment process and to coordinate the Technical Assessment Committees of the EIE Thank you for your attention