Attorney-at-Law, Melinda Janki, says that the government’s carbon credits arrangement with Hess Corporation violates the constitutional rights of Amerindians to their property and self-government.
In a letter to President Irfaan Ali of yesterday’s date, Janki warned that any claim by his government purporting to have acquired the consent of the National Toshaos Council (NTC) to sell carbon credits, “is legally impossible.”
Janki told the Head of State that while it may be the intention of his government to respect and protect Amerindian rights, it appears to be unfortunately doing quite the opposite through the arrangement with Hess.
Hess Corporation, one of the partners in Guyana’s lucrative offshore oil block, on December 2nd last year announced the purchase of US$750m of this country’s carbon credits over 10 years and 15% of the monies will go to Indigenous communities.
The Hess purchase followed an announcement by the Architecture for REDD+ Transactions (ART) of the issuance of over 33 million carbon credits to this country. Hess will purchase the first 30 per cent of that amount for a minimum of US$750 million over a ten-year period.
Janki said that it is the Amerindians who own the carbon removal function through their ownership of land under absolute legal titles (land grants) held by their Village Councils, and that government cannot tell them what to do, as under the Amerindian Act, “they are free to do as they like as long as they do not try to give away their land rights.”
The Amerindian Village Councils she said own; the forests on the land, the trees which make up those forests and everything apart of those trees; as well as the ability of the tree to produce oxygen and remove carbon from the atmosphere through photosynthesis.
This she tells Ali, is the carbon service “which your government is attempting to sell as a carbon credit.”
“The government cannot sell Hess the carbon services of any Amerindian forest (or any tree in that forest) because the government does not own those carbon services,” she told the Head of State.
In her 4-page missive dispatched yesterday to the President’s office, Janki outlined the constitutional protections afforded the First Peoples to their property; noting that Amerindian landowners (those with absolute titles), are the only people who can decide whether to sell carbon credits; stressing that “government cannot take away the carbon service and sell it to Hess. That would be unconstitutional.”
Land and forests the lawyer said, are property; and “the carbon service of the forest is a right in the nature of property. The Constitution protects Amerindian property. The government cannot take away Amerindian property.”
Interpretation
She told Ali that if there is any doubt whether something constitutes property, the Courts choose the interpretation which upholds the fundamental rights of citizens. “In my view, a Court would apply established legal principles and would hold that carbon removal is a property interest which belongs to the property owner i.e. the Amerindian Village that owns the land,” she contends.
Janki continued, “Therefore the government does not have the legal power to sell carbon credits which relate to forests on Amerindian land. Any attempt to do so would be a deprivation of property contrary to the Constitution.”
Citing media reports by which she said government claims to have gotten consent from the NTC for selling carbon credits; Janki pointedly asserts “this is legally impossible.”
She said that the NTC does not own the forests, as it has no legal right to do anything with those forests. “The NTC cannot authorize the government to sell carbon credits,” she then stressed.
Referencing the Amerindian Act of 2006 which protects Amerindian land rights, Janki next sought to inform Ali that the only people who can sell carbon credits for forests on Amerindian lands are the Amerindian communities who own the land and forests under a legal title held by their Village Council.
She said that obviously this applies only to Amerindian communities which have settled their land claims and obtained legal title to land.
She then further sought to explain to President Ali that Guyana does not have native/aboriginal title, as it is incompatible with sovereignty (as guaranteed by international law) and contrary to national law.
The lawyer said the Amerindian Act guarantees that Amerindian communities hold their lands (and rights/interests in those lands) for present generations and future generations while adding; “they own the land forever. They own the forests, the trees, [and] the carbon service forever.”
Janki said that if an Amerindian village/community wishes to sell carbon credits, they must follow the procedures in the Act, which were developed by Amerindian communities to protect themselves from exploitation and outside interference and to stop Village Councils from making bad decisions.
The Act she then notes, says that the Village Council must act in the best interests of the Amerindian village/community; which she said means that the Village Council must get independent expert advice from professionals.
“They cannot ask NGOs, activists, academics etc. for advice,” she told the President in her letter.
For example, she said that the Village Council must get independent expert legal advice, and that their lawyer has to understand the Amerindian Act and ensure that the carbon credit arrangement complies fully with it.
Short-change
Also, she said that the Village Council must get independent professional financial advice and they must know the value of the carbon credits so that they do not short-change present or future generations.
Janki contends that if used correctly, the Act enables Amerindian communities to protect themselves from exploitation, noting that the Village Council will have to share all the legal and financial advice with the entire community and that they must consider the advice.
This she said is a difficult issue and the community should therefore ask questions until it is sure it understands the issue fully.
She told the President that the carbon function is not forest produce but an interest in property—in the trees that form part of the land owned by the community—and therefore, at least 75% of the Village general meeting would have to agree before the carbon credit can go ahead.
According to Janki, carbon credits are new and communities would be better off making their decisions based on traditional Amerindian consensus as provided for by Section 34 of the Act.
“Obviously NGOs, activists, government and other outsiders must not interfere in the village or try to influence their decision. Nobody can rush the Amerindian Village. Nobody can demand an answer. They have to wait. The Amerindian Village can take as long as they like,” Janki told Ali.
She told Ali that the “government is legally required to respect the priorities set by Amerindian Villages and their Councils. The government must respect Amerindian villages/communities when they choose to do things differently from the government’s ‘development’ objectives.”
She then continues, “The government does not have the legal power to require village plans from any Amerindian Village. The government cannot tell Amerindian villages/communities what to do. Under the Amerindian Act 2006 they are free to do as they like as long as they do not try to give away their land rights.”
Janki’s letter has been copied to the Attorney-General as well as the Amerindian Village Councils.
