24 August 2018, 9.30 – 16.00 hr. at The Connecion Seminar Center, Ladprao, Bangkok

Introduction:

On August 24th, 2018, a forum on “Developing Good Governance Beyond Borders in ASEAN: Voices from Communities” was organized in Bangkok by ETOs Watch (a Thai civil society group) and Social Research Institute (Chulalongkorn University). The term ‘Good Governance Beyond Borders’ in the Thai title of the forum refers to ‘Extra-Territorial Obligations’ or ETOs, which are human rights obligations of any states or nations beyond its borders or national territory toward people living in other countries, as recognized by the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (2011). The event intended to be a regional forum to monitor the situation and impacts of Thai investments on other countries in the Mekong region as well as collecting recommendations based on cases studies for further development of Extraterritorial Obligations (ETOs) in the region.

The forum was organized in four sessions. Started with updates on Dawei Special Economic Zone; representatives from Myanmar and Thai civil society presented cases of SEZ-related projects, associated impacts, and efforts made so far by local people and civil society. The second part of the forum invited opinions from experts particularly Dr. Niran Pitakwatchara, a former Thai National Human Rights Commissioner, to open the discussion. The third session discussed the issue of “trade-off and good governance in investment” through direct experiences of local people and NGOs in Myanmar and on Mekong who are directly affected by or working on development projects involving Thai investments. In the last part of the forum, Mr. Surajit Chiravej, a former senator and legal expert, shared his opinions followed by discussions from participants.

Session 1: “Dawei Special Economic Zone: looking back before going forward”

Thant Zin (Myanmar civil society): Right now in Dawei, apart from the Road Link project, we are also facing two big (coal) mining projects whose products and the resulting power will be exported to Thailand. On the other hand, the way the Myanmar government prioritizes economic (aspect of) development results in land-grabbing problems for many villagers especially those in Karen territory. At the moment over 80,000 acre of villagers’ lands have been confiscated by the government. In Tanintharyi, 1.8 million acres of land are planned for mega-projects. Consequences extended on the environment, loss of natural resources, social and cultural impacts. An example of a project with all aspects of impacts are the Heinda Mine where local communities have fought on for a long time.

In our previous efforts, we submitted a petition on Dawei SEZ [regarding good governance and violation of human rights by Thai investor] to the Thai National Human Rights Commission (NHRC) which resulted in a [Thai] cabinet resolution in 2016[1]. We’ve also collaborated with ETO Watch, a civil society coalition, to monitor issues regarding loans for the Road Link project. What we plan for the near future is to build awareness/understanding and empower capacity of local civil society – for example in Ka Loan Tha village, a key location where adverse affects on natural water sources are expected. Additionally, we plan to promote local tourism in in aspects related to eco-tourism and cultural-tourism.

Teerachai Sanjaroenkijthawon (The Mekong Butterfly): presented information about the Road Link project, a two-lane road connecting Dawei SEZ and Thailand, from field visits and interviews with local communities and civil society who are active in the area directly affected by the project. On March 29th 2018, the Myanmar parliament green-lighted a THB4,500 million (approx. $128 million) soft loan program offered by the Thai government through the Neighbouring Countries Economic Development Cooperation Agency (NEDA), a public organization under the Ministry of Finance.  The loan is destined for development of existing road connecting Dawei Special Economic Zone (Dawei SEZ) with Ban Phu Nam Ron border checkpoint in Kanchanaburi Province of Thailand into a two-lane highway. The Myanmar government announced that the project construction will begin in the middle of this year (2018). At the moment Italian-Thai Development Plc. (ITD), under Myandawei Industrial Estate Company Ltd (MIE) joint venture, had already conducted a Revised Draft Final Report for Environmental and Social Impact Assessment (ESIA) of the two-lane road. The loan was approved amid opposition by local communities. Additionally,  civil society in both Thailand and Myanmar have questioned whether the THB4,500 million loan is in compliance with the (Thai) cabinet resolution in May 2016 on ‘policy recommendations regarding community rights in the case of Dawei deep seaport and SEZ operation by the Thai private company’ in which the cabinet acknowledged the need for a mechanism to control, monitor, and/or support private sector in respecting basic human rights principles as well as pushing for additional measures for earnest enforcement of the UN Guiding Principle on Business and Human Rights (UNGPs) – concerns have been raised whether the policy recommendations will be enforced.

Detail of the two-lane road (Road Link) project (Roland Burger, 2016)

In 2016, Roland Burger, a consultant company for the final phase of Dawei SEZ, released a plan for road infrastructure construction to be developed by another developer company. The plan includes:

The current dirt road will be developed into two-land paved road.

There will be two traffic lanes, each with minimum width 3.5 meters.

The roadside of each lane will be minimum 1 meter for hill and mountain area and 1.5 meter for flat area.

The road will meet standards of Thailand Department of Highways. This project will use Highway Standard 4 which allows 4% slope for hill area, 8% slope for mountain area, and 12% slope for flat area; Standard 4 supports traffic of average 300 – 1,000 vehicles per day.

Four tool-fee collection checkpoints.

Buildings for administration and emergency/rescue operations.

However, it is still unclear whether the actual model to be constructed by the THB4,500 million loan from Thailand will follow the plan released by Roland Burger as mentioned above or will keep to details indicated in the ESIA report proposed by TEAM Consulting Engineering in 2015. Final decision may depend on consultation and cooperation among government agencies in the Thai-Myanmar ad-hoc committee on the two-lane road as well as terms and conditions stipulated in the loan agreement by NEDA.

Session 2: Expert Opinions

Dr. Niran Pitakwatchara (former National Human Rights Commissioner) opened the discussion by reflecting on cases of Thai investments in neighboring countries.

First point: It is a global trend now, not only in Myanmar but around the world, that countries under capitalist system are embracing neoliberalism for their development paradigm. We should also notice that the cases we are discussing now is actually a repeated pattern – (development) projects/policies are harming people and destroying livelihoods while benefiting only big business and transnational companies. That is why we should work on changing the way governments (Thai, Myanmar, Cambodia, Laos, alike) are thinking about development. That development in this region does not have to be and shall not be destructive to our natural resources so as to be consistent with the Sustainable Development Goals (SDGs). If we continue with the status quo, we will contradict what we have promised with the global community [on environment and human rights]. We need to show governments that if they genuinely want to achieve SDGs, their actions need to be consistent with the (sustainable development) principles.

Second point: While the (Thai) government is in the process of making national action plan on business and human rights (for implementation of the UNGPs),  it also needs to start taking actions. Start by respecting human rights – most importantly respecting people’s rights to self-determination i.e. respecting people’s decisions regarding their own lives and future. In this case, [those involved] include people in Dawei, people on Thai-Myanmar borders, and every Thai citizens who pay their taxes which was granted as the 4,500 million Baht loan to the Myanmar government. The result of the loan must not diminish the principles [UNGPs]. Because in the end, villagers did not demand compensation, what they want is to have their land and livelihoods back.  The government should reconsider the evolving definitions of development which currently draw attention around equitable investment. The state has not only the duty to protect, but also to respect people’s decisions. It also needs to disclose information to allow people to be well-informed when taking part in decision making [of public policies and processes]. The [public participation] processes should also be organized before evictions or impact assessments. EIA is an instrumental process; it can be evidence to verify to companies of possible impacts/damages a project may have caused on natural resources and people hence how much will it cost for recovery of possible losses; therefore assessing whether company has the real capacity to take responsibility on associated risks. At the same time, the process to empower civil society and to help them understand human rights struggles is the most important element to help thriving human rights.

Dr. Niran concluded with the following suggestions:

It is necessary to rethink development paradigm of Southeast Asia – what should be appropriate development for the region.

Policy proposals should lead to secure and sustainable development; policy proposals should base on researches and continual work/engagement.

Companies (investors) must be able to answer how they plan to deal with and remediate potential damages caused by projects; in cases of emergency/accidents e.g. dams collapses in Laos; and also for long-term consequences e.g. deterioration of soil and natural resources resulting from Mekong dams and Dawei projects.

The existing capacity of ASEAN community needs to be enhanced. That is, human rights should be acknowledged as the 4th pillar of ASEAN (Declaration); at the same time, Mekong people’s council (or assembly) should also be encouraged and supported.

Srisuwan Kuuankajorn (session moderator) added that human rights principles are globally accepted however still new in the ASEAN region. To raise awareness and understanding in each country of the region is a mission we still have to push forward.

Montree Chantawong (The Mekong Butterfly) questioned [legitimacy of] the THB 4,500 million loan by the Thai government; referencing the 2016 Cabinet Resolution which suggested that to further pursue the Dawei SEZ and deep seaport, the UNGPs should be enforced particularly principles regarding protection, respect, and remedy [of human rights]. Nonetheless we see no evidence how project implementation in Myanmar from the Thai loan will comply with the three principles. This raises the question how we should respond to the loan decision since it seems inconsistent with the cabinet resolution – is it perhaps more legitimate that Thailand withhold the loan.

Thant Zin (Myanmar civil society) added about the two-lane road that there have been a lot of discussions and criticisms in Myanmar after the government decided to take the loan. For example, possibility that the government may adjust the road design particularly between Tiki – Dawei which could increase the construction cost tremendously; also the possibility to extend the two-lane road project to add other components (which would bring about additional impacts). Another main issue is regarding the non-clarified construction plan. Currently there are two known plans [as mentioned previously in Teerachai’s presentation in the first session]; and actually the EIA study details two different designs. This has created major confusions to local communities. Additionally, the locals are criticizing that there is already existing road (between Tiki and Dawei), which local people have been using to commute regularly, therefore questioning who this Road Link project will really benefit.

Premrudee Daoroung (Thai civil society)  added that once during a meeting organized by Thai National Human Rights Commission on Dawei project, a government agency had asked what local people (in Myanmar) really want for community development – whether they want road, school, hospital, or other infrastructure development – because this kind of requests can be accommodated by Thai government’s money. The interaction is a clear example of how the Thai state is trying to support private investors in seeking profits in other countries/Myanmar; in this case, intervening with offer to build public infrastructures for Myanmar in exchange of local people’s support for the project; benefiting private investors] at the expense of Thai taxpayers. This is also an example why we should look comprehensively into roles of Thai [state actors] in Myanmar as well as the need for civil society to discuss and question these conducts. In developed countries such as Japan, ODA or Overseas Development Assistance have been instrumental in creating mechanism for people and civil society to monitor and systematically question/petition [government’s ODA-related decisions] as well as creating committee to directly monitor and investigate [ODA] loans. In this regard, while Thailand is currently expanding development assistances, including investments, to countries in the region, Thai civil society should start to think about monitoring and investigating mechanisms as given the Japanese example. It is necessary for the local people to know what will come with the money/investments that are pouring in.

Arisara Lekkham (School of Law, Mae Fah Luang University) shared an observation that while Dawei SEZ project seems to clearly focus on benefits of investors, she questions the intention of special economic zones being planned now in various locations in Thailand; Whether these various SEZ proposals are planned to address genuine demand for investments or rather in fact planned to manufacture demand for construction of infrastructures (roads, transmission lines, etc.) in order to benefit a handful of people e.g. local landlords, contractors despite lack of real investment demand from outside.

Dr. Niran Pitakwatchara added, what we’ve discussed is a type/model of special economic zoning to support capital system. The way [mega development plans like SEZ] are divided into smaller projects e.g. a road, a port, a power plant, etc. then being proposed as smaller projects separately, is a trend to reduce friction [opposition from people against the projects/plans]. In the same way, EIA of an individual project makes it impossible to see overall and accumulative destructive impacts of these small projects when put together as mega-development plans such as an SEZ.

A villager from Ta Bew Chong village (Road Link project) Presentations in the morning make it clear that local people do not understand the project at all because we don’t have enough information about it – we don’t even know what this project is related to. There is no channel for villager to reach/communicate directly with the company; so far the company has been contacting only government officials without consultation with or asking for consent from local communities. Another problem we face is related to new communities of migrant workers who had immigrated from other parts of the country to work on road construction in the previous phase (temporary road between Dawei and Thai border). For this new road construction phase, project developer/investor has chosen to negotiate with these new migrant workers communities who have clearly already benefited from the existing road; at the same time chosen not to discuss/negotiate with us – the original local communities whose land, properties, agricultural cultivation/produces will be destroyed by the project. More importantly, the project area overlaps with sensitive areas with ongoing conflicts, especially areas under supervision of KNU where they had been devastated and still undergoing recovery process from previous armed conflicts; [In this regard] to impose the project on these communities only aggravate their hardship.

Nyein Tun (Myanmar civil society) In fact, another significant issue in this area is ‘security’ especially because the area is in Karen state which is, to some extent, still vulnerable [from armed conflict]. NEDA, as an organization responsible for giving the loan, should be questioned for legal repercussion of the loan approval since it did not take into account risks associated with the security issue. Additionally, when NEDA said it had opened up details about the project to the public; it has in practice merely uploaded project documents onto its website rendered it almost impossible for villagers to access those information from the internet since villagers don’t even have mobile phone.

Bo Bo (Myanmar civil society) The loaner should take into consideration politics between ethnic groups in Myanmar country; that [political] power of different ethnic groups are unequal. For example, the ethnic minority [in this case, Karen are major local population in the affected area] may oppose the project; but because most people in the government are Burmese, they may choose not to listen to the ethnic minority because Burmese people may benefit more from the project. This is a very significant context. Question should be raised to the Thai government, when it decides to give loan to Myanmar government – a country still riddled with conflicts between ethnic groups, where issues related to ethnic politics are highly sensitive – whether the Thai government has taken into consideration the context that people affected by the project are ethnic minority in the country whom they may be ignored [by the national government].

Session 3: Trade-Off and Good Governance in Investment (Extraterritorial Obligations)

Cases of Thai investment projects in Myanmar (affected villagers from Dawei region)

U Ye Aung I am from a village directly affected by the Road Link project and I am also monitoring Heinda (tin) Mine because the mine is destroying our natural water sources. The mine is under investigation at the moment, however it keeps on operating. On 7th July, there was death of a villager and not long after another woman passed away – two lives lost in the month of July as a result of the mining operation. The company always insists that it is not their responsibility.

Heinda mine is located upstream, the area is the water source of many streams and rivers which flow through many villages downstream and ultimately into the main Tanintharyi river. These streams and rivers are very important to communities’ livelihoods – for consumption and for agricultural activities. Many communities are ethnic groups who have lived in the area for generations. Impacts on us, the communities, are mounting yet no one takes responsibility, especially the company.

In the past we have security in our livelihood, we feed our families and make income from the abundant natural resources; many produces from the communities including plants from the forest, aquatic animals from the rivers;  the natural water sources are safe – we used and drank from them – but right now the water sources are polluted with toxins.

The company often claims that the project will create jobs. But menial jobs are incomparable with damages it is causing to us and our future generation who will have to continue living in the communities after everything is devastated. Nowadays many young people have to migrate from their homeland to find work; many children in school ages have to quit school because their parents can no longer afford to pay for their education due to their farmlands being devastated thus income loss; some people have experienced major health problems so bad that they can no longer work. These are clearly problem of human rights violations which need to be addressed and remediated urgently.

U Ye Aung proposed that the Thai National Human Rights Commission comes to visit the community; to investigate the case along with local Davoy people. He believes that if both sides [Myanmar and Thai] collaborate, it will be easier to resolve the problems as well as building good relationships between the two countries as part of the ASEAN community.

Naw Aye Po is a villager directly affected by Ban Chong (coal) mine, recounting their experiences with the coal mine. The Thai company who operates the mine does not follow correct guidelines. Self-combustion of the coal [when coal in the mine and stockpile ignites by itself] is a major problem causing health impacts to villagers. This also creates odor and smoke problems so severe villagers can no longer find a way to alleviate; especially during the night time they cannot sleep peacefully. Some villages have had to evacuated because they can no longer put up with the problems.

Another major problem comes from wastewater from the mining operation which flow directly into the river contaminating water sources in the area – making them unusable for the people and causing many health impacts. We used to have many fish in the water; women would go fishing from the river – that is our original livelihood. Since the company came, the fish are gone, we can no longer fish.

Although the (Myanmar) government had ordered a one-year halt in the company’s mining operation; these impacts continue as well as ongoing self-combustion of the coal. The company has not taken any responsibility in preventing further impacts nor remediate the damages it has caused.

In July this year which was the rainy season, water from the mine flooded into the river where villagers use for drinking. The flood also caused landslides which have blocked waterways. Consequently the river cannot flow freely and further affect their farmlands. The community estimates that landslides problem will continue thus never-ending series of impacts in the future.

Naw Aye Po proposed that everyone in the forum join the community to call for permanent closure of the company’s Ban Chong mining operation so as to end ongoing destruction of natural resources, livelihoods, and health of local people. Additionally, the problem of coal self-combustion needs to be urgently taken care of/stopped. Villager don’t want the mining company in their homeland anymore.

U Ye Aung added. For Davoy and Karen people, we have traditional stories and beliefs we hold dear that are related to the mountain. The mountain is where villagers go to find herbal medicines and traditional remedies since our ancestors. To destroy the mountain is like to destroy our souls and cultures.

Phe Tha Law gave more information about Ban Chong Mine. The coal mine is located in the vicinity of Dawei township. The mining project is in the area of Dawei SEZ and Road Link. The produced coal is destined for export to Thailand. May Flower Enterprise Co Ltd is the Myanmarese company who received permits from the Myanmar government to operate the mine. The Myanmarese company had subcontracted its concession to two Thai companies – East Star and Thai Asset Mining. However, at the moment only East Star is operating in Ban Chong. In parallel, the mining operation originally received permit from the KNU government for 1,500 acres – which subsequently East Star had subcontracted to Energy Earth (Plc) for mining operation in the area. The government decided on these permits based on maps without actual on-site visit to the area/community. There are 4 villages located directly in the mining project area; since most villagers do farming, the designated mining area overlaps with the villages’ communal lands where they use for various purposes including farming. Moreover, 23 villages in total will be (and already are) affected by the mining operation.

In 2015 when the mine started its operation, villagers start to record changes in their communities especially the days that coal self-combustion occurs (which is still on-going until today).

Nowadays villagers can no longer use water from the river because it has been polluted by the mine – the water has changed colors and oil slicks can be observed. In 2012 during the rainy season, wastewater gushed out of the mine flooding farmlands and houses. Villagers brought this incident to court; however the Myanmar court dismissed the case claiming limited time since impacts occurred.

Regarding consultation process, the company had held a meeting in the community; However, documents and language used to explain was in English therefore villagers could not really participate.

Our proposal is for Thailand – both the company and the NHRC – to respect human rights particularly principles in the UNGPs.

  1. Respect our human dignity. The company has acted as if villagers are uneducated, disrespecting dignity of local people who have lived in the area for generations.
  2. Business sector should operate with ethics, especially in neighboring countries. What they are doing now is to reap profits without accountability to the damages they have caused.
  3. The company shall be held accountable to pay fair compensation to the affected villagers. Although compensation is not the main solution villagers seek, remediation is necessary for damages already done.

Srisuwan Kuankajorn (session moderator) The three representatives from Myanmar have given us clear idea, from verbal accounts and photographic evidences, how natural resources are being destroyed in exchange for products and profits of private companies/investors – as the tile of this session suggests, that nature abundance and livelihoods of many people are being traded-off for profits of a few.

Cases of hydropower projects on the Mekong river (Thai civil society)

Phairin Sohsai summarized current development trend in the Mekong region. Mekong river is a gem in the region where investors are eying how they can reap profits from – thus many development projects planned and proposed on the river basin especially hydropower projects or dams. At present, 6 dams had finished construction on the upper part of Mekong. For lower part of Mekong, 11 dams are being planned with total installed capacity approx. 3,300 Megawatts) – two of which are under construction (Pak Beng Dam passed public hearing process, Pak Lay Dam received construction permit from the Laos government). Of these 11 dams, 8 of them are expected to sell all electricity they generate to Thailand.

In the case of Xe Pian – Xe Namnoy Dam [is scheduled to start operation in 2019, will be selling 90% of produced electricity to Thailand], Ratchburi Electricity Generating Holding PLC (RATCH) is the Thai company holding 25% of the project’s joint venture. Four Thai financial institutions (banks) provided loan to the project: Bank of Ayudhya (Krungsri), The Export-Import Bank of Thailand (EXIM), Krung Thai Bank (KTB), and Thanachart Bank.  The dam had caused fatal disaster to Lao people last month [23rd July 2018] when an auxiliary structure [Saddle Dam D] collapsed following a torrential rain. The incident directly affected at least four villages downstream and countless more communities and lives. Most people severely affected are of ethnic groups who have been affected by the dam since its construction began because they had no information about the project.

As of now, we still don’t see substantial/systematic aid offered by the Thai company and the banks. So far, we learn from news reports that the Thai companies (RATCH) had offered THB 5million, EXIM Bank offered THB 100,000, and EGAT offered THB 3million – these aids are perceived as charitable. The Thai entities as investors of the project should be held accountable and share more responsibility; for example, sharing benefits from selling electricity [from the dam to assist the affected people].

On the other hand, the incident had highlighted some concerns previously voiced by civil society, for example; More comprehensive assessment of transboundary impacts is necessary [Xe Pian – Xe Namnoy dam feeds into Sekong river which is an international river running through Vietnam, Laos, and Cambodia, ultimately feeding Mekong river].  The investors (the banks who gave loans) should have higher standard and accountability on remediation rather than just offering one-off charitable aids like they did in this case. Accordingly, there should be environmental institution to assist investors in [assessing potential impacts from] giving loans [for projects operating] in foreign countries – which should be held at higher standard.

Ormbun Thipsuna Local communities and NGOs working on Mekong issues have been voicing our concerns and monitoring the impacts [of dams on the Mekong and its tributaries] for over the decade. We have learned from this period that Mekong river has changed. Together with villagers in Chiang Khong in the North of Thailand, we exchange information in order to try to understand where the changes are coming from. Communities have to rely on themselves in coping with daily irregular ebbs and flows of the river; they have to search for information, monitor the water levels, study how different water volumes and flow affect water levels on its course in different areas, etc. By processing data gathered from our long-term monitoring attempt, we have learned that contribution of water volumes from the tributaries alone cannot explain the current irregularity of water levels in the Mekong river. Sometimes the water goes abnormally high and some seasons it is exceptionally dry. We have also observed that the changes are getting more extreme each year.

In the case of Xe Pian – Xe Namnoy dam disaster, civil society in Isaan region of Thailand have been coordinating with Foundation for Assisting Poor People of Lao PDR to help villagers in Laos. We also want to know how the Thai state and private sectors will take responsibility on remediation of impacts; Because this is clearly an example case of transboundary impacts, similar incident could also happen to Thai people on the Mekong in Thai side as well. We have observed that most of the people reported death or missing from the incident are of ethnic groups; additionally, some people in the affected area are not registered as Lao PDR citizen therefore the death toll should be higher than reported in the media. At the same time, when we look at many dams upstream of Mekong, we wonder what would happen if one of them collapse (and only dams on the main river but also many on the Mekong’s tributaries), especially because they are much bigger than the Xe Pian – Xe Namnoy dam. How will the people along Mekong river survive? With the unfortunate example of Xe Pian – Xe Namnoy dam disaster, now Thai people on the Mekong have more concrete understanding of potential severity of impacts from dams on the river.

On the other hand, when questioned who gain and who lose from these dams; sadly we cannot say what we have gained, we only lose. Our opinions have never been respected; our questions and concerned, even those sent through the PNPCA [Procedure for Notification, Prior Consultation and Agreement] have never been responded.

Moreover, a mechanism to inform and promote understanding [regarding changes on the river due to dams] for local people has never been developed. When notifications were sent from Department of Water Resource or provincial governors to local district or village chiefs, they were usually emergency warnings or crisis responses; that is to say, the water level/flood had reached the areas/villages by the time they issued the warnings. Consequently, in cases of disaster response and remediation, when related authorities are so slow in verifying the crisis or disaster status of the situation, communities cannot be timely remediated, for example they many not received food, survival kits, and aids. This is an absent of respect to human rights and community rights. Lessons from Xe Pian – Xe Namnoy disaster emphasizes our concerns that, in the end, our tears and lives are being traded off [for benefits of dams investors]. We await how stakeholders will demonstrate their accountability.

Session 4: Expert Opinions and Discussions

Expert Opinions

Surajit Chiravej (former senator and legal expert) The problems we discuss here are due in large part to national regulations of both Thailand and neighbor countries. If related regulations of the relevant states cannot be harmonized then another tool left is international relations. In Thailand, we also learned from past mistakes [history of environmental and community’s health protection].

Around 60 years ago, Japanese society faced with the most disastrous industrial pollution incident of mercury poisoning in Minamata city. Since then Japan started to adopt stringent measures to control pollution and protect the environment; at the same time Japan also started to export polluted industries to other countries including Thailand. One of the polluted industries exported to Thailand is the textile industry, by then Thailand was not equipped (with knowledge and regulation) enough to handle the consequential pollution, so Thai people began to protest (the Japanese factories). This is an example how business actions could affect international relations. Consequently, Thailand issued its first Environment and Natural Resources Promotion and Conservation Act in 1975. Ultimately, people learn from the problems; but we should not let problems occur and find a way to solve them later.

Business and government sectors usually go hand in hand. The business/private sector in Thailand has the “Joint Joint Standing Committee on Commerce, Industry and Banking: JSCCIB” which comprises Thai Chamber of Commerce, Federation of Thai Industries, and Thai Bankers’ Association. [JSCCIB[2] coordinates and harmonizes opinions and recommendations of Thai business sector regarding trade and economic policies; presents them to the government via the Joint Public and Private Sector Consultative Committee (JPPSCC) or directly to relevant government agencies.] There is of course no civil society in this structure [of public-private coordination]. We also don’t know if there is representative of such kind of private sector entity in Thai consulates in neighboring countries where Thai businesses operate.

Another complication when impacts already occur is how to compensate and remediate. Although Thailand uses ‘polluters pay principles’, we still have many problems in practice e.g. how to gather/measure impacts. Another problem is how to identify host (for remediation actions) because most of the time those who should be enforcing the law are in the same networks [or connected] with those who cause problems/pollutions. However, Thai entities should follow national regulations as stipulated under the Constitution; Therefore Thai entities should adhere to the same standards when operating in neighboring countries as in their own country (Thailand). In this regard, Thai Constitution ensures three basic rights for Thai citizens: 1. rights to live in good environment, 2. Rights to participate in maintaining and using resources, and 3. rights to prosecute/bring the government to court. Since the Thai Constitution establishes these rights, why don’t we uphold the same rights to our neighbors. What the state should regard is that natural resources do not belong solely to the state, they are common resources; this recognition would emphasize the need to listen to people’s opinions when a project is planned.

Discussions from participants

Montree Chantawong (The Mekong Butterfly) On Xe Pian – Xe Namnoy dam disaster, when we look at the money each company paid; The banks (investors) don’t seem to worry because they had bought insurances to cover damages associated with the project therefore they are not shouldering the risk. It has already been one month after the incident but we still don’t see the banks publicly explained substantial aid and remediation measures in place. Regarding standard practices of Thai company, so far RATCH has sent two letters to the Stock Exchange Thailand (SET) [to notify about the incident], one on the 24th July and another on the 25th July (while the dam collapsed on the 23rd July). In the letters, we notice that they don’t use the word ‘dam collapse’ or breakage but explained that the dam subsided due to torrential rain. [Which could be perceived as an effort to downplay the situation.] The problem is that [Thai authority/SET] did not do on-site investigation to find out what actually happened; whether it was just land subsidence or the dam actually broke – because what we can see from the photos is that the dam actually broke, not only subsided. Moreover, we also find that the dam construction may actually not meet standard requirement. The dam’s EIA report contains detail of the construction design that there are 5 auxiliary dams (one of which, Saddle Dam D, is the structure that collapsed). However,  budget proposal for the dam only mentions 3 auxiliary dams. This contradiction raises concern that if the budget for 3 auxiliary dams was used to build 5 auxiliary dams, the outcome would be substandard.

Xe Pain – Xe Namnoy Power Company (PNPC) is a joint-venture owning the dam. The joint-venture was formed in 2012 by two Korean companies (SK Engineering and Construction: SK E&C and Korea Western Power: KOWEPO), a Thai company (Ratchburi Electricity Generating Holding: RATCH), and a Lao state enterprise (Lao Holding State Enterprise: LHSE). The Thai company is partly responsible for engineering construction – this kind of information is traceable. However, we notice on the 24th of July that information regarding feasibility study of the dam had disappeared from website of the Thai consultant company [who conducted the EIA study]. This demonstrates transparency problems on the Thai part. The question is how to hold these private entities accountable for compensation and remediation of the disaster caused by their project.

Ashijya Otwong (Faculty of Law, Naresuan University) shares her opinions in three points.

  1. Regarding EIA law in Myanmar case: civil society should and can make their proposal more concrete; for example, specific demands can be made on Myanmar EIA law to improve public participation process. [This is because] Myanmar EIA law is relatively new, some components are even more progressive than the Thai EIA law; for example, it allows people to appeal to EIA approval decisions where Thai law doesn’t allow so. However, the Myanmar law is still short on participation process e.g. does not define what constitute ‘participation’. Take an example process in the US: communities/civil society could gather information and their demands into ‘Public Participation Plan’. Company/project developer should work together with communities on planning the participation process e.g. how the company will approach or conduct site visit to the communities, what information to be disseminated and to whom, etc. – this is an example of not imposing a single model on every projects and communities but instead be flexible and adaptive. The point is how to encourage Myanmar government to be opened for company to work on planning together with communities.
  2. Regarding consultant company conducting EIA: for many projects we will see that it’s the same handful of consultant companies who conducted these impact assessments – in this case [Dawei SEZ] it is the TEAM Consulting Group. I had an experience examining EIA studies done by TEAM on three projects in Thailand and found that their conducts are as bad in Thailand as they are in neighboring countries – a specific example is the Krabi Coal Power Plant. In this regard, one point where Myanmar civil society could potentially collaborate with Thai counterparts is on revoking permits of the consultant company.

To be qualified for conducting EIA studies according to Thai regulations, a company or institution needs a permit from ONEP [Office of Natural Resources and Environmental Policy and Planning]. Decision to grant the permit depends on the Expert Committee on entity qualified for permit to conduct EIA [under National Environmental Board, chaired by ONEP Secretary General] who would review the company’s conducts among other things. The permit needs to be renewed every 3 years (or by terms and conditions when granted) at which point the Expert Committee would review the company’s record whether it has abided by the law; Also, the Committee can decide to withhold or revoke permits in case of the company’s misconduct, e.g. falsify information in EIA studies. In this context, Thai regulation allows people to petition that a company’s permit should be revoked [by e.g. providing evidence of misconduct]. Accordingly, Dawei case may be used to petition for withholding or revoking TEAM’s permit to conduct EIA.

  1. At the moment Thai regulations on recovery and remediation only cover monetary compensation; provision on the actual acts of recovery and remediation is still missing. When the environment of a community is polluted by a project, regulations stipulate that the company (project owner) should pay compensation to the community; however, the law does not stipulate how the contaminated environment and the affected community should be remedied and recovered. A clear example is lead contamination in Klity community. Despite the Supreme Administrative Court’s order for recovery of the environment in the contaminated area, it is still unclear what the Pollution Control Department [responsible for the project/recovery] could and should do. This loophole suggests that Myanmar should not hold this aspect of Thai regulation as a standard. In cases where contamination/misconduct already happened, like the mining cases in Myanmar presented this morning, we need to look into principles for recovery and remediation to construct proposal [on how to improve relevant Myanmar laws and further remediation and recovery actions]. For example, provision to conduct on-site investigation to determine methods and procedures for recovery and remedy. If achieved, Myanmar laws could be more progressive than Thai laws in protecting its people and environment.

Chalermsri Prasertsri (lawyer, Community Resources Center) added to Ashijya’s point regarding recover that Myanmar law has a provision that allow people to request for establishment of a fund for remediation of people affected by projects. Thai law does not have this provision therefore an obstacle when affected people demand remediation and recovery in court. Additionally, Thai government agencies often lack expert knowledge required to deal with complex environmental problems.

Ormbun Thipsuna discussed more on the Xe Pian – Xe Namnoy dam disaster in Laos; from our conversations with folks in Laos, they were quite satisfied with responses by the current (Lao) Prime Minister for example on aids arrangement and acknowledgement that the dam may have substandard problem. On the other hand, when Lao folks recounted the rescue situation, disaster prevention efforts [or the lack thereof], the damages they are facing (especially loss of lives, families displaced, properties damages) and how are they are going to recover from this episode; they questioned how companies involved will take responsibility, how much will be paid, because lives and feelings of people cannot be valued in monetary term.

Learning from this dam disaster in Laos and imagining the future of Thai Mekong communities, how to respond in case if the Xayaburi dam collapse, or even respond to the current flood situation in some parts of Isaan right now. We cannot wait for government agency, i.e. Department of Disaster Prevention and Mitigation, to announce disaster status before we take action in response to the situation, we need to rely on ourself in gathering information [monitoring/expecting disaster situation]. Also, disaster from dam collapse is more than natural disaster since it is a result of human activities. We should learn from our experiences in Laos how each process should be elaborated.

References

[1] May 2016. [Thai] Cabinet Resolution on ‘policy recommendations regarding community rights in the case of Dawei deep seaport and SEZ operation by the Thai private company’ regarding human rights violation and enforcement of the UN Guiding Principle on Business and Human Rights (UNGPs).

[2] Source: https://www.jsccib.org/en/home/history

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