Recently, Bobbie and I went with Sor Rattana, a Thai lawyer and member of the Mekong Legal Network (MLN), to several provinces along the Mekong river in the Isan region (the northeastern part of Thailand) to observe her consultations and information sharing with communities on the proposed Xayaburi dam in Laos. The controversial project, which is yet to be completed, would be the first dam on the lower Mekong River, and is the result of a power purchase agreement between the Electricity Generating Authority of Thailand – EGAT (the buyer), the Lao government (the seller), and Xayaburi Power Company (the generator).

Sor’s consultations were aimed at advising the communities and villagers on the current situation of the Xayaburi dam, and preparing for litigation as requested by the potentially affected communities. Sor’s organization, the Community Resources Centre, is preparing a case against EGAT in the Thai administrative court. As Bobbie previously noted, there are numerous concerns about the potential impacts of this project, including transboundary environmental impacts in Thailand, and a lack of public information disclosure, consultation and participation before the agreement was made.

Which plan? Whose needs?

At the moment, there is no clear line between the public’s need for energy security and their need for food security. Needs for food, water, and energy are linked; one can affect to the others, making it difficult to strike the balance necessary for sustainable development. Villagers state that although they understand that electricity is important for the country, they cannot live without the fish threatened by the dam. Governments need to consider food security when they want to build projects to generate electricity. The underlying reason for the power purchase relates, in fact, to Thailand’s Power Development Plan (PDP2010), where EGAT has forecasted the gross national energy demand. The PDP2010 has been criticized by Thai groups for overestimating the actual demand, making the need to purchase power unclear and questionable. It remains to be seen who gets to enjoy the advantages offered by this agreement.

Meanwhile, although EGAT claims the power purchase is for domestic consumption within Thailand, many believe it is actually intended for commercial export. In January, Chuenchom Sangarasri Greacen, an energy researcher from Palang Thai, presented an alternative “PDP2012” plan. According to this plan, Thailand does not necessarily have to import power from neighboring countries but can rely on renewable energy and power decentralization.

Encouraging community participation

However, what matters more than determining which plan is ‘right’ is the creation of a good forum for public participation which allows community members to raise concerns.

Sor’s consultations were conducted with the Mekong community council, which covers seven Thai provinces (Loei, Nongkhai, Buengkan, Nakon Panom, Mookdaharn, Amnatcharoen and Ubon Rachthani), although the consultations took place only in Mookdaharn, Buengkan and Loei provinces.

Sor has been working closely with human rights activists and communities for years, and this was our second time observing her community consultations. Before the trip, Sor discussed with us how she communicates with the communities and the villagers. Once she framed a picture of this scenario, she was able to understand the role of all stakeholders and how to respond with different legal strategies. Although this consultation mostly focused on possible litigation against EGAT and the other energy authorities, this could be a first step leading to other strategic efforts as well.

During the consultation, Sor gave an overview of administrative procedure to the villagers. She explained which law the villagers could use to challenge EGAT’s actions. Sharing case studies from her previous experiences, Sor he urged the villagers to see how hazardous it would be for the community to disregard the impacts of the project .

Sor gave a powerful and touching presentation: “The power is in your hands. No one can deprive you of that power. You can either use it as a sword or a shield. We are just here to give you support if needed.”  Her speech reflected how she devotes herself for the public interest rather than personal gains. Sor, along with water resource expert Hannarong Yaowalers of the Assumbly for the Protection of the Environment and Natural Resources, explained that consulting about a lawsuit is not just about getting the villagers’ consents and signatures. It is also about ensuring that the villagers in all communities completely understand what we are trying to do; otherwise, they will not support the litigation over the long term.

Community consultation remains vital

Ironically, in discussing the communities’ options, Sor followed the process that should have been done under the Mekong River Commission’s Procedures for Notification Prior Consultation and Agreement (PNPCA). Sor informed them of the goal of the consultation; provided information and updates on the current situation; consulted and shared the experiences including the concerns raised by the participants; and then worked out a consensus.

EGAT should have followed this same consultation process before signing the power purchase agreement. It is its responsibility under Thailand’s cabinet resolution and the 1995 Mekong Agreement, which requires all parties (including Thailand and Laos) to follow the PNPCA before constructing any dam on the Mekong River. Unfortunately, the only thing that EGAT has done is to upload unclear and inaccurate information on the Xayaburi dam on its website. Of course, there are very few villagers who can access the Internet and check its website.

Can this be regarded as “consultation”? Of course not. The villagers still had no idea how this could affect their future and the futures of the next generation. Therefore, signing the power purchase agreement was a breach of the State’s duty and obligations under the Mekong Agreement.

The key message of Sor’s consultation was how to press EGAT, through litigation, to do no harm and make things right for the villagers in the communities. Any Thai person can bring a case against EGAT for legal non-compliance because all taxpayers of Thailand pay for electricity based on the national income tax.

Moving forward

At the end of the consultations, numerous villagers signed to indicate their opposition to the dam and the power purchase agreement. Sor believes it will take a few more months to complete the collection of signatures. The timeframe is set for CRC’s suit against other energy authorities, as co-respondent with EGAT, for not complying and fulfilling the requirements under the law. The villagers can change their minds, of course; this litigation is for the communities based on their voluntary determination, and they can always decide not to move forward.

The road to the justice may be long, but it is not out of reach if we keep strong and move forward together. This is not just a fight for our generation, or just for Thais, but for our neighbors whose lives depend upon the river. Thailand, more than in many parts of Southeast Asia, guarantees the rights of the community to stand strong and seek justice and legitimacy under the Thai Constitution.  Now the question is this: “Are we ready to fight?”