Legal victory for Indigenous pastoralists in Kenya
A major blow to the Northern Rangelands Trust’s Northern Kenya Grassland Carbon project.
A legal ruling in Kenya is a major blow to the Northern Rangelands Trust’s Northern Kenya Grassland Carbon project. The ruling found that two of NRT’s biggest conservancies were set up unconstitutionally.
Last week, REDD-Monitor reported on a documentary by Deutsche Welle about the carbon project, which covers an area of more than 2 million hectares. The project area consists of 14 conservancies, set up by NRT.
DW’s documentary included an interview with Innocent Makaka, a human rights lawyer. He told DW about the constitutional petition brought by 165 community members against NRT. The lawsuit alleged that NRT’s establishment of two conservancies on Indigenous pastoralists’ land was unconstitutional.
The case was filed in September 2021, and judgment was delivered at the end of last week by the Isiolo Environment and Land Court. The Court ruled that two of NRT’s biggest conservancies, Cherab Conservancy and Biliqo Bulesa Conservancy in Isiolo County, were established unconstitutionally.
The three judges, Oscar Amugo Angote, Charles Kimutai Yano, and Christopher Kyania Nzili, ruled that, “the Petitioners have ably demonstrated breach of statutory duties, and violations of a number of their constitutional rights”.
About 20% of the carbon credits generated by the Northern Kenya Grassland Carbon project are from Biliqo Bulesa Conservancy. The carbon credits have been sold to companies including Meta, Netflix, and British Airways.
Survival International writes that,
The ruling likely applies to around half the other conservancies involved in the carbon project too, as they are in the same legal position, even though they were not part of the lawsuit. This means that the whole project, from which NRT has made many millions of dollars already (the exact amount is not known as the organisation does not publish financial accounts), is now at risk.
The Court also ordered that NRT’s heavily armed rangers must leave these conservancies. These rangers have been accused of serious human rights abuses against the Indigenous pastoralists living in the area.
Blood Carbon
In 2023, Survival International published a report about the Northern Kenya Grassland Carbon project, titled, “Blood Carbon: how a carbon offset scheme makes millions from Indigenous land in Northern Kenya”.
The report mentions the constitutional petition and states that, “There are very serious issues relating to the legal basis of the project and the way it has been implemented.”
NRT’s project document states that,
Rights to benefit from soil conservation as a component of wildlife conservation are conferred by the right to register lands as Conservancies by the Kenya Wildlife Conservation and Management Act of 2013 and by the recently signed Community Lands Bill of 2016.
Survival International’s report points out that,
In fact the former Act contains no reference to soil, even in its definitions of what constitutes ‘ecosystems’, ‘wildlife conservation areas’ etc. The latter law only refers to soil in relation to the prevention of erosion. Neither law refers to carbon, carbon projects or the generation of income from the sale of offsets.
In a statement, Survival International notes that the Court ruling is “the latest in a series of setbacks to the credibility of Verra, the main body used to verify carbon credit projects”.
Despite the fact that some of the conservancies lacked a clear legal basis and could therefore not “own” or “transfer” carbon credits to NRT, the project was still validated and approved under Verra’s carbon certification system. The project went through two verifications.
Verra reviewed the project in 2023 after Survival International’s complaints. But the review failed to address the problems. Survival International described the review as a “shocking whitewash”.
In April 2020, two weeks after the carbon project had been validated by Verra, a group of Samburu and Borana Indigenous elders put out a petition calling for international donors to stop funding to NRT. “We believe that your continued support to NRT operations enhances its ability to violate our rights and continue in its criminal activities,” they wrote and called for donors to “totally disassociate” themselves from NRT because of the serious violations of human rights.
In a statement, Caroline Pearce, Director of Survival International, said:
“The judgement confirms what the communities have been saying for years – that they were not properly consulted about the creation of the conservancies, which have undermined their land rights. The NRT’s Western donors, like the EU, France and USAID, must now stop funding the organization, as they’ve been funding an operation which is now ruled to have been illegal.
“This ruling poses some very awkward questions for both the NRT and Verra, as it shows that there is no legal basis for at least a significant portion of the carbon project. The carbon credits issued by it should now be considered invalid.
“Unfortunately, this NRT disaster is far from an isolated problem. Too many of these carbon offset schemes follow the same outdated model as traditional ‘fortress’ conservation – claiming to ‘protect’ land while trampling over the rights of the Indigenous owners of it, and making handsome profits in the process.
“That NRT has also cut legal corners while doing so should not be surprising, and was pointed out by Survival years ago. It’s long past time for Verra to finally conduct a proper review and scrap this project once and for all.”
Thank you! Nice to see a WIN! Hopefully it can survive appeals.
🙏💪