Why Thai communities are defending their rights to the Mekong River in court

Friday, June 9, 2017


Yesterday, representatives of the Chiang Khong Conservation Group and communities living along the Mekong River in Thailand filed a lawsuit in the Administrative Court over the proposed Pak Beng Dam upstream in Laos. 

This is the second lawsuit filed in Thailand over a dam being developed on the Mekong mainstream in Laos. The first, which remains before the Supreme Administrative Court, challenges Thailand’s plan to purchase Xayaburi Dam hydropower without having informed and consulted with Thai communities along the Mekong who will suffer serious negative impacts from the project. 

Yesterday’s lawsuit affirms the critical importance of the Mekong River as a shared transboundary resource, not only in supporting business interests but also in sustaining ecosystems, food security, local economies and livelihoods. Thai law requires state agencies to protect citizens’ rights to natural resources as well as the interests of local people in the development of a project like Pak Beng Dam. 

Those of us living along the Mekong have grave concerns about Pak Beng’s impacts on our communities. Our homes, located in three districts of Chiang Rai province, are already downstream of a cascade of dams on the upper Mekong in China. The closest project, the Jinghong Dam, is 340 kilometres upstream. For two decades, we have experienced drastic changes to the river and its ecosystem due to the dam’s operation, especially in unnatural water-level fluctuations. If built, the Pak Beng Dam’s reservoir will inevitably create impacts beyond the Lao border and into Thailand, especially in the border district of Wieng Kaen, which is around 92 kilometres from the dam site. 

Our homes will be stranded between two reservoirs, and our lives along the Mekong will be subject to the operation of these dams. 

The Pak Beng lawsuit challenges the conduct of Thai state agencies, including the Thai National Mekong River Commission, accusing them of failing to carry out their duties towards citizens under Thai law and the 1995 Mekong Agreement – the regional framework for cooperation on the use of the lower Mekong between Thailand, Laos, Cambodia and Vietnam.  

Under the Mekong Agreement, it is the duty of each country to carry out national consultations that meet the requirements of Prior Consultation. Public consultation is organised based on each country’s legal procedures.

In Thailand, public meetings were only organised in three provinces, neglecting many of the communities in eight provinces along the Mekong who will be affected. Extremely limited information was provided, and given only to a handful of community leaders who were able to attend meetings. Many concerns were voiced by those who participated in the meetings, yet little response was offered by authorities, and the project developers were not present to answer questions or respond to concerns.

After these meetings, villagers wrote to the Department of Water Resources (DWR), Department of Fisheries, Ministry of Natural Resources and Environment and other agencies, seeking further information and a response to concerns. In reply, the DWR claimed they had no legal obligations with respect to the project as it is located in Laos. They acknowledged that the developers provided poor-quality impact assessments, but stated that they would request mitigation measures to address any impacts in Thailand.  

This response is vastly inadequate. Reviews of the project studies, including the Mekong River Commission (MRC) draft technical review of the Pak Beng Dam plus an independent review commissioned by International Rivers, have found that the project studies are weak and the baseline data on fisheries, hydrology and sediment is limited and out of date. Without proper data, it is not possible to understand the real impacts of the project, conduct meaningful consultations or design mitigation measures to address impacts. We have seen this before with the Xayaburi and Don Sahong dams. 

While the project developers have released a transboundary and cumulative impact assessment, the report draws on data that is a decade old, failing to take into account current developments on the river. The transboundary assessment did not involve meaningful input from communities in Thailand, and it understated and minimised potential cross-border impacts. 

A response to the communities from the Electricity Generating Authority of Thailand (EGAT), dated May 18, states that EGAT would not sign a power purchase agreement on any hydropower project on the Mekong River unless it has undergone Prior Consultation. EGAT writes, “Regarding transboundary environmental and social impacts on communities upstream and downstream in Thai territory as a possible result of the operation of the Pak Beng Dam, EGAT has already considered the Pak Beng Dam Project’s EIA, and provided technical and academic comments, as well as the mitigation measures and impacts monitoring system stated in the reports. EGAT is willing to cooperate and support relevant agencies to push for a Transboundary Impact Assessment. The assessment will inform the impacts more clearly, and will lead to the improvement of mitigation measures.”

This indicates that EGAT is aware that the project will result in transboundary impacts on Thai soil. Such impacts must be assessed before a decision is made to construct the Pak Beng Dam. This is what we are asking the Thai authorities to ensure. 

Government agencies must meet their obligations under Thai law and the 1995 Mekong Agreement. The Thai government has a responsibility to stand up for the rights of its communities and protect the lives and livelihoods of Thai people in regional decision-making on Mekong dams. We believe that Thailand must prioritise the rights of Thai communities and reconsider investment and support for the Pak Beng Dam. 

Niwat Roykaew is a founder and chair of the Chiang Khong Conservation Group and Mekong School on Local Knowledge, and a plaintiff in the Pak Beng lawsuit.