Webinar Recap : When carbon markets go wrong - How to ensure access to remedy for land tenure violations

This webinar, the fourth of the Advancing Land-based Investment Governance (ALIGN) series, took place on February 9th, 2024, under the title “When carbon markets go wrong: How to ensure access to remedy for land tenure violations”. The webinar drew in 562 participants and featured panelists from policy experts to community leaders. The webinar was jointly organized by the Land Portal Foundation, the International Institute for Environment and Development (IIED), Namati and the Columbia Center on Sustainable Development (CCSI).   

Ketan Joshi, Senior Associate: Net zero task force, Global Strategic Communications Council, moderated the panel, which featured the following speakers: 

• Immaculata Casimero, a Wapichan woman and member of the Wapichan Wiizi Women’s Movement 
• Eileen Wakesho Mwagae, Director of Community Land Protection, Namati
• Nicolás Galarza,  former Vice Minister of the Environment in Colombia
• Jonathan Crook, Policy Expert on Global Carbon Markets, Carbon Market Watch
• Stephanie Amoako, Senior Policy Associate, Accountability Counsel

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Can you describe the community you work with and their experience with carbon market projects?

Eileen: Namati’s work with local partners in Kenya focuses on supporting communities, more specifically supporting Indigenous and local communities to secure their land rights. Namati strongly believes that communities with secure tenure rights and strong local land governance systems are in a better position to negotiate with external parties. IPLCs practice pastoralism and, in the last year or so, extended drought has meant that most of the communities have lost their animals.  In one Community Land Management Committee meeting, one of the women stated: “This drought is one never witnessed before, and this is because there are people that are taking our air and selling it abroad.  I think this is why it is becoming hard to breathe. I  worry that they will take it all”. This highlights the complex nature of carbon offset projects, not just in Kenya, but across the world. How do you make sense and engage effectively with something that you have little or no information about? We must remember that the I comes before the C in FPIC; consent must be informed.  

Immaculata: The South Rupununi District Council is the representative institution of 21 communities in South Rupununi, Guyana. We have had a long standing struggle for the legal recognition of customary lands, and have been working with communities especially as it relates to land tenure.  As the Wapichan people we have been fighting for Indigenous land rights for over 50 years since Guyana became independent. One of the experiences we have faced with the carbon market is that our rights to FPIC have been violated, as no proper consultation  has been carried out as it relates to the sale of carbon from both titled village lands and our customary lands. Although the government, through the National Toshaos Council, signed an agreement at the national level, no consultations have happened at the village level. This was one of the challenges we have faced and also, not really knowing how this happened. Furthermore, there has been no input from Indigenous Peoples into the Low Carbon Development Strategy (LCDS). An especially important barrier to note is language, especially in terms of the technical language in these strategies.   

Has your community faced challenges in navigating access to remedy? Did you have sufficient access to information and the rules to go about it?

Immaculata: From the inception when we got to know about carbon markets our Toshaos, who are our village leaders, met with the Office of Climate Change in Georgetown, Guyana. They tried to ask for more information, request for consultations to take place and even offered support in ensuring that the people in their villages were aware of carbon markets. We have tried understanding carbon markets from the very beginning because this is something new to us. Despite the fact that carbon credits have been sold by the government of Guyana from our titled village land and our villages have received money for the communities, we still do not know what measures will be put into  place in terms of monitoring and measuring carbon in our forests. We tried to issue statements, tried to meet, but we have not had any dialogue at the South Rupununi District Council level with the government.

In terms of remedy, there has not been much done other than just trying to speak and meet with the Architecture for REDD+ Transactions (ART) at the international level with the Ameridian Peoples Association (APA) and other district councils. We are trying to have them understand what our position is and what are some of the conditions as Indigenous Peoples in the South Rupununi. We have not sought any access to remedy from the government although there are recommendations from the community which were submitted to the government. The APA has filed a complaint as it relates to ART. Due to different challenges, they were unable to carry the complaint forward.
 

How do you see the national government's role in responding to these new carbon markets and ensuring communities can access remedy?

Nicolas: Providing an enabling environment with clear rules is paramount to the development of carbon markets. Unfortunately it is hard for governments to keep up with the speed emerging from such a dynamic market. In different contexts and jurisdictions, I have witnessed how the speed of market development surpasses the capacity of institutional response. On that token, clear rules and procedures as well as transparency in information in my experience have been bottlenecks where rights or guarantees are violated. 

It is important to stress that carbon markets didn't arise as a mere commodity to be traded. Carbon credits and compensations have had, since its offset, social and environmental goals that in many instances make the intervention of governments, even more necessary and complex at once.  This regulatory framework must certainly include mechanisms for access to remedy, although it is important to highlight that some underlying conditions can and have been set forth before the existence of carbon markets. For instance, in terms of land demarcation and tenure to Indigenous Peoples and local communities, Colombia is a good example because since the 1980's the state has granted demarcation and tenure to Indigenous and Afro-Colombian communities. This has been a key enabler.

If a community is trying to access remedy with a global grievance mechanism, what type of mechanism would apply for different types of markets?
 

Jonathan: Carbon markets are fragmented. There is no global regulatory oversight, and as such, no one global grievance mechanism and each standard has its own mechanism. Grievance mechanisms are ‘optional’, that is, carbon markets can operate without them. However, they are extremely necessary. In absence of grievance mechanisms, there may still be state-based judicial remedies (court systems) or non-judicial mechanisms (mediation systems).

The Clean Development Mechanism (CDM), for example, had no grievance mechanism and this led to many problems. After the contraction of the CDM, most of the market today is made up of the Voluntary Carbon Markets. A study commissioned by Carbon Market Watch using the UNGPs (United Nations Guiding Principles on Business and Human Rights) found that the main Voluntary Carbon Market standard, Verra, had a limited grievance mechanism at the time of the report. For example, there was no clarity on how the grievance is handled independently and no grievance repository. The second largest standard, Gold Standard, was found to have the strongest grievance mechanism among peers on Voluntary Carbon Markets. Here, there is a dedicated website with details and clarity on process and step-wise approach, resolutions can be translated into different languages, grievance repository available, projects undergoing grievance lagged on registry. 

Generally, for most standards, there are several aspects to improve on  and the  best practice found outside of carbon markets, in the Independent Redress Mechanism of the UN Green Climate Fund. There is a detailed processes, webpage and proactive approach to awareness raising (meetings, publications, social media, 14-language brochure), independent team from the Green Climate Fund

Hearing about land violations from the communities and the gaps at the national level, what is the most effective practice necessary in global grievance mechanisms?

Stephanie: The Accountability Counsel has supported nearly 60 communities to navigate grievance mechanism or independent accountability mechanism processes at development finance institutions and other institutions. We also engage in policy advocacy to strengthen these mechanisms and research on what mechanism complaints tell us. We know carbon markets can cause harm, and the people most impacted are local communities.

Mechanisms typically have two functions - compliance review and dispute resolution. The UNGP Effectiveness criteria include: legitimacy, accessibility, predictability, equitability, rights-compatible, source of continuous learning and transparency. Accessibility is a particularly important issue.  Much of the time, communities do not know who is behind an initiative or project and that there is a grievance mechanism. Beyond knowing that a mechanism is available, communities shouldn’t have to encounter burdensome requirements for filing complaints - like proving which environmental and social standards were violated when the harm was caused. Communities should also know what the process will be and receive regular updates.