The Mekong's view in Chiang Khong, which is closet to Pak Beng dam project. Credit: Thai Mekong People's Network from Eight Provinces

New legal mechanisms demanded to cope with transboundary impacts on the Mekong after Pak Beng dam complaint dismissed

The top Administrative Court on Wednesday turned down an appeal against the third Lower Mekong dam project, Pak Beng, citing no laws to overrule the regional obligation and address transboundary impacts, prompting concerns over possible total exposure of the Mekong River to exploitations as there are no effective mechanisms to cope with transboundary impacts

Chair of Raksa Chiang Khong group and a plaintiff in administrative court case against the dam, Niwat Roykaew, has voiced out his concerns after the court hearing on Wednesday that it is now equivalent to total exposure of the Mekong River to threats brought by development projects.

Mr. Niwat said it’s clear by the court decision now that there is limitation to keep up with transboundary investments as there are no legal or financial mechanisms to keep them in check, while transboundary impacts are also let loose.

“The Mekong River is totally “naked” now, having no gears to protect it. That’s the reason why we desperately need to create new mechanisms to help protect it. We cannot let it continue like this,” said Mr. Niwat, strongly calling for new legal and mechanisms to be seriously developed and put in place.

The group’s representatives at the Court on Wednesday.
Credit: The Community Resource Centre Foundation

The court’s decision

On Wednesday, the Supreme Administrative Court turned down an appeal by Mr. Niwat’s group, which had asked it in 2017 to look into its requests to nullify the prior consultation process for the dam, conducted by three Thai agencies as part of the regional process required under the Mekong agreement (Office of National Water Resources, Water Resources Department, and the Thai National Mekong Committee).

They also requested the court to enforce them to adhere to the Thai Constitution and Thai laws in regard to natural resources and environmental management, while amending or enacting laws related to transboundary impacts in line with the Constitution. Expressing a clear stance against the project and also suspending work in regard to the project were also part of their requests.

The first court, which had received their petition in early 2017 for consideration decided to reject it, prompting the group to appeal to the top court as such.

According to a lawyer from the Community Resource Centre Foundation, Chalermsri Prasertsri, the court reasoned that the prior consultation is an international obligation under the Mekong agreement that Thailand had rectified. So, Thai laws cannot overrule it. The project, in addition, is not under the country’s sovereignty so the country has no authority to regulate it.

Second, the agencies are not in a position to enact the laws as requested, while the existing laws including the environmental protection and promotion act have no clauses relating to transboundary impacts to enforce. The agencies, it said, have acted on the matter on behalf of the government, so their actions are not subject to administrative disputes.

The case, therefore, is over here, said Ms. Chalermsri.

A modelling of Pak Beng dam.
Credit: CDTO

Pak Beng dam

The Pak Beng dam project is the third out of 11 planned on the Lower Mekong by the Laos government. Hydropower Project is a run-of river project located in the Mekong mainstream. Invested by the Chinese company, China Datang Oversea Investment (CDTO),  The power plant is planned to have an installed capacity of 912 MW.

With such the grand scheme, the Mekong locals especially in Chiang Khong district in Thailand’s Chiang Rai province fear the impacts could be felt in Thailand’s territory as the tail of the reservoir could likely reach it due to a close proximity.

The Lao National Mekong Committee Secretariat submitted the detailed description of the planned project to the MRC Secretariat on November 2016 for its review and further action to inform the other member countries about the project’s scope and other requirements under the prior consultation process.

It then entered the formal prior consultation process, which is part of the so called the Procedures for Notification, Prior Consultation and Agreement (PNPCA) under the Mekong Agreement.

According to the PNPCA, any infrastructural project using the mainstream water during the dry season within the same basin, as well as during the wet season between two basins, must undergo the prior consultation process.

Large-scale irrigation and hydropower development which may cause significant impacts on the environment, water flow and quality of the Mekong mainstream, are required to follow the process.

As the MRC always explains, the process is aimed for the member countries to come to an agreement on “how the consulted case should proceed”. It is not meant to approve or not to approve the proposed project.

This process usually lasts six months, but could be extended further by the JC, as seen in the cases of the fifth and the sixth projects of Luang Prabang and Sanakham, of which the likely transboundary impacts have become of deeper concerns even among the concerned officials themselves at present.