The Amerindian Peoples Association (APA) has been unsuccessful with its carbon credits appeal and is of the view that the entire process has been unfairly dealt with.
In a release on Friday, the APA confirmed its withdrawal of its appeal to the Architecture for REDD+ Transactions (ART) Secretariat regarding the 2022 issuance of carbon credits to the Government of Guyana. It stated that the Secretariat’s own standard – The REDD+Excellence Standard – was not correctly applied since TREES (The REDD+ Environmental Excellence Standard) requires that the Government of Guyana fully respect the rights of Indigenous peoples before ART can issue carbon credits to the Government. The APA posited that numerous international human rights bodies are in agreement with its belief that the Government of Guyana does not adequately respect the rights of Indigenous peoples and as such, does not meet TREES.
The Association made ‘no bones’ about placing the “forced” withdrawal from this process at the feet of the ART Secretariat’s “refusal to budge and address the concerns of the APA relating to the terms of reference (TORs) for the appeals committee which would determine the appeal.” Its concerns, it said, relate to aspects of the TORs which would “undermine the fairness, legitimacy, effectiveness, and transparency of the appeal process.” As such it set out a timeline of communication with ART while highlighting its critique of the process.
According to the release, the APA’s May 11 initial complaint regarding the process employed for the issuance of carbon credits was rejected by the ART Secretariat, while “interestingly,” the same day the secretariat dismissed the complaint, it published a new complaints guidance which elaborates new criteria for complaints and appeals.
Undeterred however, an appeal to that decision was filed the following month, on June 16. Notwithstanding, the APA expressed the belief that from the outset, the appeals process was highly biased in the favour of the ART Secretariat and it has consistently raised objections in this regard.
In its explanation of the TREES standard, the Association informed that the Appeals Committee must be established with one representative from the ART Secretariat, one from Winrock Inter-national and an independent representative chosen by the APA. However, it questions its fairness. “The mere fact that Winrock International (which hosts the ART Secretariat) and the ART Secretariat, get to choose the majority of the members on the Appeals Committee is a cause for concern for the APA and raises questions about the fair adjudication of complaints and appeals.” Nevertheless, the APA stated its resolve to pursue the process and to try to encourage the process to as much as possible to meet international standards for grievance mechanisms.
In the following month, July, ART responded to the June 16 appeal, informing that it would convene a committee to review the appeal, and that the committee will determine the eligibility of the appeal. The decision was roundly criticised by APA as a deviation from TREES Article 16, which does not stipulate that there is to be an eligibility determination before the appeal. It was also pointed out that it is also a deviation from the new Complaints Guidance, which says that ART is to conduct the eligibility review of the appeal within 30 days of receipt of the appeal.
On August 22, the APA submitted to ART, the name of Professor Rosa Celorio of the George Washington University, an expert in international human rights law, as its independent nominee to the Appeal Committee. It was approved by ART on August 30.
Then on September 18, APA received a document from the ART Secretariat outlining the TOR for the Appeal Committee with a follow-up letter on October 3 asking APA to sign the TOR by October 6. APA responded on October 3 saying that it was “still reviewing the Terms of Reference and planning to suggest some revisions.”
However, the secretariat responded indicating that it would need APA’s edits by the following day “to determine if we can address them or not,” while pointing out that TOR for the appeal “is not meant to be a negotiated document since the scope of work and need for confidentiality are straightforward.”
In spite of APA’s concern that ART seemed unwilling to negotiate on the TOR, in keeping with the deadline, it returned its comments on the TORs on October 4 outlining its concerns. “We indicated that the TORs now add new Threshold Criteria for the appeal which are not in TREES and not in the Complaints Guidance; it does not give the Appeal Committee the opportunity to consult external experts, which is necessary because none of the committee members have any experience with Guyanese law (an understanding of which is key to determination of APA’s appeal) and only one committee member has expertise in international human rights law; it does not give the Appeal Committee the chance to review information outside the appeal record, which restricts the amount of information they have available to decide the appeal; and it makes all communications regarding the appeal and appeal process confidential, even after the appeal is decided, undermining the transparency of the process.”
List of questions
On October 6, Professor Celorio submitted a list of questions to ART Secretariat regarding the TOR.
On October 10, four days later, ART responded to APA’s comments and sent a revised TOR stating, “In the event that the TOR and the Confidentiality Undertaking is not executed and returned by all applicable APA entities and the APA’s selected Appeal Committee member on or before October 13, 2023, we will determine that APA does not wish to proceed with the Appeal and consider it thereby withdrawn.”
Here, the release underscored that ART made no significant changes to the TORs nor did it address APA’s concerns. As a matter of fact, it noted that ART only corrected its spelling of Professor Celorio’s name while giving APA three days to file an addendum to address the new Threshold Requirements. Additionally, ART characterised Professor Celorio’s questions as “Advocacy Communication.”
“We later learned from our nominee that ART did not provide her with any answers and has not communicated with her since.”
On October 12, APA emailed ART to request an additional week to respond, noting the difficulty of rapid communication with the Executive Board, who were dispersed in various communities throughout Guyana. It also reiterated its commitment to the appeal process but noted that it wanted to be able to trust that the TOR would establish a “fair process that will appropriately consider the substance of our complaint and appeal.”
On October 13, ART responded to APA’s request, extending the deadline to October 18, while also stating that “the Appeal Secretariat’s procedures are not at the discretion of the Appellant or the Respondent.” However, the APA pointed out what it deemed to be another flaw. The ‘Appeal Secretariat’ cannot be established until all parties have agreed and signed the TORs, since it is a body that is only established in the TOR. Importantly, the two persons that the TOR names to be on the Appeal Secretariat are also representatives of the Respondent (ART).”
On October 18, APA submitted a letter, a redlined TOR, and its Appeal addenda to ART in accordance with the deadline. It also submitted attachments to the addenda which are copies of documents that were footnoted in the appeal to ensure ease of access to that information for the Appeal Committee.
On October 25, ART via email, rejected the APA’s proposed redlines and sent an Order for Dismissal, with an ultimatum that the Order for Dismissal would go into effect on October 27 at 6:01pm if the APA did not sign the TOR in their current form.
In its response, the APA stated that it could not sign a TOR that did not have equal and adequate input from both parties, and “that would not allow for a fair, transparent, legitimate, and effective appeal process.” The letter also noted that “we remained open to discussing the TOR further if ART changed its mind about shutting down the process.”
From the APA’s viewpoint, it is clear that from the communications with ART that the process has been intended to not only “frustrate the APA, but also quickly dispose of our appeal without due process.” The APA is also of the belief that ART is doing everything in its power “to shut down” any questions that are raised relating to its issuance of carbon credits to Guyana.
And as such, the APA pondered, “While we are aware that this is the first such issuance since the establishment of ART, we are now forced to question why ART refuses to employ a fair, independent, and transparent complaint mechanism that will scrutinise its decisions and uphold transparency.”
However, as expected, the Guyana Government viewed the matter in a different light, describing the APA’s appeal as a failure.
Failed
According to a release from the Office of Vice President, Bharrat Jagdeo, also issued on Friday, the APA failed in its attempt to appeal a decision that was made by an Independent Reviewer, regarding the Guyana application under the carbon credits programme.
It referred to the Association’s release, interpreting it as expressing dissatisfaction that the ART Secretariat has not given in to its “machinations,” which seemingly attempted to bias the ART process with several of APA’s demands. The APA’s appeal, the release noted, was tabled in July, and “followed its first failed attempt at stopping Guyana’s ART Trees crediting, which effectively meant stopping carbon credits revenues flowing to Amerindian Villages.”
It also took pains to underscore that the Independent Reviewer who examined the APA’s complaint, had concluded that the process set forth in the ART Standards was followed by Guyana, and that concerns expressed by the APA were not supported facts and, in several cases, were “inaccurate,” and, further, that specific issues pointed to in the APA’s submission did not reflect an understanding of the role of the ART Standard.
The Independent Verification, the release explained, concluded with a rejection of the complaint made by the APA, as well as its associated call for the suspension of Guyana’s ART-TREES carbon credits. Further, it noted the Independent Reviewer’s conclusion that the APA’s claims that it had not been appropriately consulted on Guyana’s ART-TREES issuance process, were “verifiably false.”
It also alleged that the original complaint by the APA and the recent Appeal, were both done in secret and without the knowledge or support of any Indigenous communities in Guyana, and without the knowledge or support of any of their elected leaders. “Once the existence of the complaint (March 2023) and the Appeal (July 2023) were made public (by other parties, not by the APA), not a single Indigenous community supported it.”
In support of its contention, reference was made to the National Toshaos Council (NTC), comprised of leaders from every Indigenous community in Guyana, which it said spoke up on behalf of Indigenous communities to ensure that their voices would be heard. “Those leaders are elected by their own communities, unlike those of the APA. The NTC continues to speak up on behalf of communities across the country, including raising issues with the Government to ensure that communities receive the benefits from the sale of carbon credits that they rightly expected.”
Further, the release noted that at the recently held NTC Council Conference in August, there was no support expressed for the APA’s appeal. The question, it said, arose at the time of the complaint in March and again at the time of the Appeal in July, as to who the APA is purporting to represent and whether there has been Free Prior and Informed Consent (FPIC) by Amerindian Villages. The ART Secretariat is likely to respond formally to the APA’s exit from the Appeal process.
“It is clear that APA’s attempt to accuse the ART Secretariat on grounds of fairness, legitimacy and transparency backfired. The APA, through filing its Appeal without appropriately seeking the free prior and informed consent of the stakeholders which they claim to represent, has now been exposed as guilty of breaching the FPIC principle, of being unfair in advancing an agenda that has failed to secure widespread buy-in from Indigenous people in Guyana, and for a lack of transparency in its operations. Further, the APA’s Appeal been exposed, via international independent review, as being nothing more than a failed political attempt to stymie the development of Amerindian Villages, once again”, the Vice President’s office said.
The release also took the time to highlight that Guyana has earned US$150 million in payments from the sale of ART-TREES credits for the year 2023. It informed that a total of 85 per cent of this money is being invested in multi-community and national priorities identified by stakeholders during the seven-month consultation on the Low Carbon Development Strategy (LCDS) 2030, while 15 per cent – or $4.7 billion – has been directly transferred to village bank accounts for investment in village plans, put together by villages themselves. As such the programme will see continuous financing flows to villages, the release added.
