APA says being forced to withdraw from Carbon Credits appeal process

Oct 28, 2023 News

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Kaieteur News – The Amerindian Peoples Association (APA) on Friday said it is currently being forced to withdraw from the appeal of its complaint to the Architecture for REDD+ Transactions (ART) Secretariat regarding the 2022 issuance of carbon credits to the Government of Guyana.

In a statement to the media, the APA said its complaint was that ART did not apply its own standard, The REDD+ Environmental Excellence Standard (TREES), correctly, since TREES requires that the Government of Guyana fully respect the rights of indigenous peoples before ART can issue carbon credits to the Government.

“The APA believes, and numerous international human rights bodies have found, that the Government of Guyana does not adequately respect the rights of Indigenous peoples and therefore it does not meet TREES.

The forced withdrawal from this process lies 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. The APA’s concerns relate to aspects of the TORs which would undermine the fairness, legitimacy, effectiveness, and transparency of the appeal process,” the APA said.

Further, the APA said that on May 11, 2023, the APA’s initial complaint regarding the process employed for the issuance of carbon credits was rejected by the ART Secretariat. Interestingly, the same day that the ART Secretariat dismisses the APA’s complaint, it published a new complaints guidance which elaborates new criteria for complaints and appeals.

“Nevertheless, we filed an appeal to that decision on June 16, 2023. The APA believes that from the onset, the appeals process is highly biased in the favour of the ART Secretariat and we have consistently raised objections in this regard.

According to the TREES Standard, the Appeals Committee is to be established with one representative from the ART Secretariat, one from Winrock International and an independent representative chosen by the APA. The mere fact that Winrock International – which hosts the ART Secretariat – and the ART Secretariat gets to choose the majority of the members on the Appeals Committee is a cause for concern for the APA and raises question about the fair adjudication of complaints and appeals.”

The APA said that it resolved to pursue the process and to try to encourage the process to as much as possible meet international standards for grievance mechanisms.

In July 2023, ART responded informing that it will convene a committee to review the appeal, and that the committee will determine the eligibility of the appeal. That decision, from the onset, is a deviation from TREES Art. 16, which does not stipulate that there is to be an eligibility determination before the appeal. Additionally, 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, the APA said.

APA said it named its nominee, Professor Rosa Celorio of the George Washington University, an expert in international human rights law, to the Appeal Committee to ART on August 22.

APA’s independent nominee was approved on August 30 by the ART Secretariat.

The APA said that on September 18, it received a document from the ART Secretariat outlining Terms of Reference for the Appeal Committee. The email from ART related that ART is “attaching a copy for you to review” and that they were sending a copy via DocuSign for signature. ART follows up on October 3 asking APA to sign the TOR by October 6. APA responded on October 3 saying that we are “still reviewing the Terms of Reference and planning to suggest some revisions.”

“In relation to this correspondence, the ART Secretariat responded indicating that they would need APA’s edits by the following day “to determine if we can address them or not. The Terms of Reference for the appeal is not meant to be a negotiated document since the scope of work and need for confidentiality are straightforward.”

While we were already concerned that ART seemed unwilling to negotiate on the TOR, in keeping with the deadline, the APA returned its comments on the TORs on October 4 outlining its concerns. We indicated that the TORs now adds 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,” the APA said.

Further, the APA said that on October 6, its independent nominee submitted a list of questions to ART Secretariat regarding the TOR.

Four days later, on October 10, ART responded to APA’s comments and sent a revised TOR stating that “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.”

“ART made no significant changes to the TORs nor did it address APA’s concerns. As a matter of fact, ART only corrected its spelling of Professor Celorio’s name and gave APA three days to file an addendum to address the new Threshold Requirements. Additionally, ART characterized 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,” the APA detailed.

The Association said too that on October 12, an email was sent to ART to request an additional week to respond, noting that rapid communication with the Executive Board, who are dispersed in various communities throughout Guyana, is difficult.

The APA said it reiterated our commitment to the appeal process but noted that we 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.

ART’s letter also states that “the Appeal Secretariat’s procedures are not at the discretion of the Appellant or the Respondent”. However, 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 by the deadline set by ART. APA said 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 emailed the APA to reject its proposed redlines and with an Order for Dismissal, and to set an ultimatum, stating 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.

“The APA has responded that it cannot 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 APA letter noted that we remained open to discussing the TOR further if ART changed its mind about shutting down the process.

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 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,” the APA stated.

The Association said that while it is 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?”

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• Amerindian Peoples Association (APA), appeal, Architecture for REDD+ Transactions (ART) Secretariat, carbon credits, REDD+ Environmental Excellence Standard (TREES)

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