In a recent letter, Janet Bulkan argued that the sale of carbon credit by the Government of Guyana is fraudulent. To support her argument, she cited sections 13, 14, 34 and 44 of the Amerindian Act cap. 29:01 2006. According to her, these sections require a properly convened village meeting and a vote of at least two-thirds of villagers in favour of such disposal.
The author also stated that the Architecture for REDD+ Transactions (ART) Secretariat’s TREES and Aster Global Environmental Solutions as auditor were informed that their failure to apply the Amerindian Act led to these criminal acts. Notably, Aster Global was contracted as the auditor of Guyana’s carbon credits scheme to ensure compliance with the Architecture for REDD+ Transactions (ART) Secretariat’s TREES (The REDD+ Environmental Excellence) Standard.
However, the author, who is an Environmentalist/Activist failed to demonstrate how the Amerindian Act was breached. Merely citing the relevant sections, according to her, is not sufficient.
Section 13 of the Amerindian Act speaks to the “Functions of Village Councils”. These include
a) Represent the Village;
b) Provide advice and strategic direction to the Village;
c) Provide for the planning and development of the Village;
d) Hold for the benefit and use of the Village all rights, titles, and interests in or over the Village lands;
e) Manage and regulate the use and occupation of Village lands;
f) Promote the sustainable use, protection and conservation of Village lands and the resources on those lands;
g) Encourage the preservation and growth of Amerindian culture;
h) Ensure that places and artefacts located within Village lands, and which hold sacred or cultural values to the Village are protected and cared for;
i) Protect and preserve the Village’s intellectual property and traditional knowledge;
j) Nominate Councilors or other members of the Village to accompany the Toshao to attend meetings on behalf of the Village;
k) Ensure that proper accounts and financial records are properly kept and provide to the Minister and auditor a copy of the accounts;
l) Levy taxes on residents;
Section 13 (2) A Village Council may assign tasks but may not delegate its functions to any other person.
Section 13 (3) In carrying out its functions a Village Council shall at all times
a) Act in the best interests of the Village; and
b) Provide for the good governance of the Village.
Section 14 of the Act speaks to the “Powers of the Village Council to make rules”. Some of the main clauses of this section include
i) The management, use, preservation, protection and conservation of Village lands and resources or any part thereof;
ii) The protection and sustainable management of wildlife including restrictions on hunting, fishing, trapping, poisoning, setting fires and other interference with wildlife;
iii) The development and regulation of agriculture;
iv) The construction and maintenance of roads, bridges, ditches, fences and other local works;
v) The granting of permission for business or trade on Village lands; and
vi) A rule of the Village Council shall not be inconsistent with any other law and shall be void to the extent of such inconsistency
Section 34 of the Act speaks to “Village General Meeting”. Section 44 of the Act speaks to the “Inalienability of Village Lands”. Section 44 (1) states “A Village Council shall not dispose or attempt to dispose of any interest, right or title in Village lands except as provided in this Act. Section 44 (2) states “Any attempt to dispose of any right, title, or interest in Village lands, except as provided in this Act, is void”.
I rather suspect that the Environmentalist/Activist relied more so on section 44 of Act in respect of the disposal of any right, title, or interest in Village lands. In fact, this is the genesis of her argument where she contends that “any Amerindian Village Council can agree to dispose of natural resources of the titled Amerindian Village Lands only through compliance with sections 13, 14, 34 and 44 of the Amerindian Act”.
Contrary to this view, my contention is that the sale of carbon credit does not translate to the “disposal of any natural resource”. Examples of disposal of natural resources would be mining concessions where the right to conduct such activities are transferred to an entity, forestry concessions, and any other commercial and/or industrial activities that would require for the rights to the Village land be transferred to another party for such purposes. Hence, in these circumstances, the Act must be applied. On the other hand, the sale of carbon credit is very different. In the marketplace, it must be understood that the sale of carbon credit is to offset carbon emissions. So, in this particular transaction, Hess, which is an oil producing company and whose activities result in carbon emissions, is merely paying for carbon credit to offset its carbon emissions.
Essentially, carbon is trapped on farmlands, in forests, soils and trees. This is a natural phenomenon that is already happening whether or not a country generates any earnings for same. So, for a country to monetize the process by which carbon emissions are trapped in its forests, farmlands, and trees, how could this be regarded as fraudulent?
As such, in my professional view―the sale of carbon credits to offset carbon emissions does not, in any way, form, or fashion, breach the Amerindian Act. Because it does not translate into a transfer of ownership or rights of the natural resource to another party. It is simply the consequence of a natural process that is being monetized, and―therefore, the rights and ownership of the natural resources by the Village councils remain in their control.
Additionally, as far as I am aware, the Amerindian Villages were consulted by the Government, and a portion of the funds from the sale is disbursed to the Villages to finance their development needs.
(Referenced letter to which this author has offered a response: