Clear improvements can be seen in the final text, but much still remains to be done before future FLEGT licenced timber can guarantee that indigenous peoples’ rights are fully protected.
The Voluntary Partnership Agreement (VPA) that has been under negotiation between Guyana and the EU since 2012 was initialled in Brussels on 23 November 2018. The VPA is a timber trade agreement part of the EU’s initiative to reduce illegal logging and promote trade in timber that is sustainably and legally harvested, referred to as FLEGT (Forest Law Enforcement Governance and Trade). Initialling marks the end of the negotiations, but does not mean that the VPA is ready for operation. Now, each party embarks on internal consultations before they will submit the text to their respective Parliaments for ratification. Upon ratification starts a period of implementation, which will see the detailed development of the various components of the Timber Legality Assurance System (TLAS) necessary before trade in FLEGT licenced timber can commence.
Throughout the negotiation process indigenous communities and organisations have called for their customary rights to land and resources to be protected in the agreement, including the right to give or withhold their consent to any timber concession on their land. In this regard, they insisted that the national Constitution and international human rights treaties signed by Guyana and EU member states be part of the legality matrix used to measure whether timber has been harvested, transported and sold legally. This has been of paramount importance to them since relevant national laws do not fully protect these rights.
The call for the inclusion of the Constitution and the international human rights treaties has been met in the final text of the Legality Definition (LD). After initial concern about the practical implication of their placement in a separate part of the LD than the national legal references, it was clarified in a meeting of the EU, Government of Guyana and stakeholders on the eve of the initialling that this is strictly a matter of format. According to the negotiating parties, there is nothing in the VPA that can be interpreted to mean that the Constitution and the international human rights treaties have less impact on the definition of legality than the other legal references. This clarification is very welcome, as it means that the customary lands of indigenous communities not currently recognised by State-granted titles will be protected from external forest concessions (unless consent is given by the customary owners) until the relevant national laws are revised to contain this protection (see below).
Other improved elements to highlight in the final VPA text is the increased commitment to transparency in the allocation of forest concessions. The TLAS now makes links between concession allocation and the ongoing Amerindian Land Titling Project and announces the development of a vacancy list of forest areas available for concession allocation. Such a list will be a highly positive development if it is developed with the effective participation of indigenous communities, drawing on existing information about indigenous customary lands. Such information can be found trough the records held by the Ministry of Indigenous Peoples Affairs (MoIPA) about pending applications for titles or extensions; communication with the District Toshao Councils currently mapping their customary lands; and research on the extent of indigenous peoples’ customary lands carried out by the Amerindian Peoples Association, communities and FPP during the Land Tenure Assessment work (see the results of this research here: Regions 1&2 report, Region 8 report).
Therefore, while there are improvements in the final text, much still remains to be clarified during the implementation period to ensure that indigenous peoples’ rights are protected – particularly their rights to customary lands that are not legally recognised by the state – before the system enters into operation. Apart from the vacancy list and more detailed procedures for concession allocation, the TLAS envisages that other key developments during implementation will be the elaboration of mechanisms for verification, monitoring and complaints as well as the strengthening of the legal framework. All these processes must ensure the effective participation of indigenous communities and the legal review must be coordinated with the ongoing process to reform the Amerindian Act (2006). Once national laws have been revised, it is vital that the VPA is updated accordingly.