CHAPTER XV THE LAND RÉGIME 1. Native Land Rights. THE Sovereignty of the State rested upon the acquisition from native chiefs of a large number of treaties, the terms of which were far from uniform.1 But in the land policy of the State from the outset there appears to have been no effort made to deal separately with the tribes the land question was treated as on a single basis, and the land rights of the State were, it appears, deemed to flow directly from its sovereignty irrespective of the precise terms of the treaty, applicable to any particular section of the country.2 The aim of the Association in negotiating its treaties appears, however, clearly enough from the terms of such a treaty as that with the chiefs of Ngombi and Mefela concluded by Stanley on April 1, 1884. The chiefs, claiming to be the absolute owners of the country ceded by them, and to be acting with the unanimous assent of the people, agreed that the Association should become possessed in absolute property of all roads and waterways, rights of collecting tolls on these roads and waterways, and of all game, fishing, mining and forest rights, together with any unoccupied lands as may at any time hereafter be chosen'. At the same time the Association undertook to take from the natives of the ceded country no occupied or cultivated lands except by mutual agreement', and in another treaty of April 19, 1884, with the chiefs of Pallaballa it was expressly provided that the expression 'cession of territory', which had been used in 2 1 See Stanley, The Congo, ii. 197-206. Lannoy, L'Organisation coloniale belge, p. 135. the earlier treaty with the chiefs of January 8, 1883, did not mean the purchase of the soil by the Association but the purchase of the suzerainty. The State in its Ordinance of July 1, 1885, issued by the Administrator-General of the Congo adopted the position that 'Nul n'a le droit de déposséder les indigènes des terres qu'ils occupent', and on the other hand that all vacant land. was the property of the State. The policy embodied in this measure assumed that there was to be found in the Congo a distinction between territory actually in the occupation of natives, and other lands over which the native tribes might have a political claim but which they did not occupy, and which therefore might properly be assumed to pass to the sovereign power in the Congo, or over which no tribe had even a political claim. The last possibility at the time of occupation of the Congo could hardly have had much application1: the native tribes appear to have had very definite ideas of their boundaries, though these might by wars be varied from time to time, and the land claimed by the State must therefore rather have fallen under the category of parts of the tribal territory not actually occupied. But the meaning of the term occupation, as has been seen, was not made clear until the reform decree of June 3, 1906, which still governs the situation. Under it the term 'occupied' includes toutes les terres que ces derniers (les indigènes) habitent, cultivent, ou exploitent d'une manière quelconque'. The terms are to be understood as interpreted by the local practice of the tribes, and therefore the collection of the natural fruits of the soil is included as occupation. In order, further, to permit of rotation of crops the decree prescribes the assignment to each village of three times the area inhabited or occupied by it, or even more, with the per 1 Johnston (George Grenfell, i. 456) seems to suggest that some parts were not even under political sovereignty, and that in any case there was much unoccupied land which the State could justly claim, if it were ready to use it for public ends. 2 This is the view taken by Lannoy, L'Organisation coloniale belge, - p. 143. mission in the latter case of the King. The delimitation thus accomplished in each case is depicted on an outline map deposited with the Commissioner of the district, and is marked out on the spot by natural or other boundaries. It follows clearly from the manner in which the decree has been applied that the recognition of native occupation is not extended in the full breadth of the actual terms of the decree: under these terms it would seem that all the extent of the territory which the natives ever used, e.g. for collecting rubber or ivory, should be treated as native land, for they certainly 'exploitent d'une manière quelconque' such territory. The official interpretation, however, limits the intention, and in effect assigns to the village an area three times the amount of the land under occupation in a more intensive sense at the time when the delimitation is made, leaving it for future legislation to extend these areas to meet new growth of population. The State also proceeded to interpret in a peculiarly narrow sense the extent of the native rights in the land which they occupied. It is perfectly clear from the terms of the treaties that the natives who gave sovereign rights to the Association claimed to be absolute proprietors of the lands, the sovereignty of which they conveyed, and in the earliest enactments of the State regarding the registration of title acquired from the natives, which was forbidden unless the contract of 'l'acquisition ou la location' was approved by the Governor-General, the terminology proves clearly that the State recognized the natives as absolute owners of their lands. Shortly after this, however, the State adopted a wholly inconsistent and illegal attitude, for in the first place it decided that the natives had only the right of user of their lands,2 and, in the second place, that they could only dispose of the products of their lands in the measure in which they had done so before the constitution 1 1 Decree of September 14, 1886, Art. 2; Ordinance of November 8, 1886, Art. 1. 2 Codification des dispositions concernant le régime foncier, novembre 1893, Art. 1. of the State.1 In the reform decree of June 3, 1906, the native rights appeared in a definitely reduced form: Il sera procédé à la détermination officielle de la nature des droits d'occupation des indigènes.' The apparent sense 2 of this prescription would be that the administration was charged with the duty of determining the nature of the rights which arose from the occupation by the natives of the land, so that it could decide whether it was to regard them as proprietors, commoners, holders precario or so forth, but it was also possible to regard it as meaning that the duty of the State was to determine whether the occupation was permanent, temporary, complete, or limited to some purpose or other. In the latter case the position of the natives would be treated as a mere right of enjoyment of the soil, the domain resting in the State, a position which offers a remarkable parallel with that of the American Indians in Canada as defined by the Privy Council.3 The point, however, has not been decided by any legislation of the Congo, and is of more theoretic than practical interest. What is clear is that, while the natives have the enjoyment of the areas allotted to them, they cannot dispose of them to third parties without the assent of the administration, which in view of the restricted nature of native lands can hardly ever be properly accorded. 2. The Domain Lands. The State, and now the Colony, possessed domain lands of two classes. The first, of very minor importance, comprises those lands which have been expropriated for public purposes in virtue of the decree of February 4, 1887, supplemented by a ministerial arrêté of February 28, under which, in default of agreement between the Government and the owner of the land, the compensation is decided by a tribunal: under the 1 Rapport de la Commission d'enquête, p. 151. 2 Lannoy, L'Organisation coloniale belge, pp. 140, 141. Colonial Charter1 the old rule which permitted the price to be paid within four months after the decree of expropriation has been supplanted by the Belgian rule requiring payment to be made in advance. The vast bulk of the domain consists of the lands claimed by the State as vacant. It again falls into two categories, the first constituting the public domain, and the second the private domain in the more strict terminology. The former includes rivers, streams, and watercourses which are navigable or not, and the borders to an extent of ten metres from high-water mark, which are open to public passage 2: curiously enough, the same rule has not been made applicable as in Belgium to the foreshore, ports, harbours, and roadsteads, though in the Congo it affects the beds and the margin of the Great Lakes, which are subject to frequent variation of depth. 3 The rest of the domain is the private domain, which is open to disposal by the State. No principles are laid down in the Colonial Charter regarding the extent to which cession or concession of this domain should be approved, but the control over the land is reserved strictly in the hands of the Belgian Government. In its original form the Charter required that every cession or concession of domain lands, whatever the period of concession, must be approved by a decree if the area affected was over ten hectares, but the unnecessary rigour of this requirement has been reduced by a law of March 5, 1912, under which the intervention of a decree is requisite only for cessions or concessions for any period of lands outside urban areas exceeding 500 hectares, and of lands in urban areas exceeding ten hectares. Moreover, in order to secure the full control of Parliament over important transactions, there must be laid before both 1 Art. 2. 2 Decree of August 9, 1893, Art. 7; amended by decree of June 30, 1913. Decree of June 30, 1912. This was asserted in the decree of June 30, 1887, and now under the decree of February 23, 1910. 5 Art. 15. |