Teerachai Sanjaroenkijthaworn

 

On 7 January 2020, a Thai mining firm operating the Heinda Tin Mine since 1999 lost a lawsuit in Dawei District Court sued by Saw Dah Shwe, a villager from Kin Baung Chau. He had filed such lawsuit in the Dawei Court in 2013 as he was affected by the Heinda Tin Mine located near his house and farmlands. The firm’s open pit mine has released wastewater and mine tailing down the river damaging vastly his trees and plants. The court ruled that the company must compensate Saw Dah Shwe 114,800,000 kyats (or approximately 2,400,000 baht) for such damages.

The success of Saw Dah Shwe in winning this case (even in the court of first instance) made people in Myanmar think about their legal battles towards the violations caused by foreign companies investing and damaging property and environment in the country.

The Mekong Butterfly and Spirit in Education Movement (SEM) had an opportunity to discuss about and gain some lessons learned of the Heinda Mine case from lawyer Saw (pseudonym) and the representative of a civil society organization who have been providing supports and legal assistance in filing complaints of the villagers affected by the company’s operations to the court. This is in order to step-by-step review and take the lessons of community’s legal fighting under the judicial process: litigation strategies; searching of sharp points of dispute; accurately collecting complicated data and evidences; pointing out loopholes and judicial processes that hinder the appearance of justice as well as pushing the issues to be resolved at the policy level.

 

Causes of action

The Heinda Mine’s tailing ponds initially leaked into and blocked the Myaung Pyo River in 2013, Kin Baung Chaung as a nearby village was also affected. The leakage of such ponds let the tailing mine flow into the creek and affect plant varieties which were food and income sources of Saw Dah Shwe’s family and 4 of his neighbors.

 

Pre-litigation and case preparation

On 14 August 2014, the CSO that helped Saw Dah Shwe and his 4 neighbors started to collect data on trees and crops damaged by the mine operations both in the form of relevant documents and photos in order to prepare a lawsuit against the Thai mining firm seeking compensation. In the same year, True Friends organization sent a first notice to the company regarding its mine operations that affected the villagers and asked for its responsibility, it however remained silent and replied nothing.

Although there were 5 plaintiffs at the beginning, the only person who still fought to the last was Saw Dah Shwe. The other plaintiffs left the case with different reasons, two of them were mining workers. Even if their crops were damaged, the overlapping status of being workers in the mine and owners of such damaged crops made them only choose one. Without any guarantee of winning the case and receiving justice in court at that time, being workers in the mine was probably more secured and they could still make money for their families. Comparing their loss of trees and plants with the loss of their jobs, they ultimately withdrew from the case. In addition, some of the plaintiffs had experienced mental illness while collecting damage data and taking legal process, they were then unable to pursue the lawsuit and finally quit.

Another reason that cannot be overlooked is a very complex and complicated access to judicial process, for example, the villagers must go the court for testimony at least 3 times a month which could be extremely burdensome as in each trip they had to face with opportunity cost: traveling expenses; time spending in proofing and collecting evidences to make their lawsuit credible in the court instead of using such period for their own careers and creating income for their families.

On 4 September 2015, the CSOs and lawyer Saw submitted the second notification letter in order to dismiss the first one and to inform the company about the violations. This letter expected the company to pay for the damages, if not, it would be taken to court. The company kept silent nonetheless. In addition to sending such warning letter, the legal team also submitted information; documents and photos to relevant regional government agencies as well as CSOs prior to the lawsuit so that these actors could perceive the empirical evidences. This was an indirect way to add more weight and credibility to the evidences.

 

Litigation; causes of action and legal battle strategies  

On 28 September 2015, the CSOs and the lawyers filed a tort lawsuit against the company to the District Court for the consideration of the compensation amount as claimed. This lawsuit was filed before the one that dozens of Myaung Pyo villagers sued Myanmar Pongpipat Company (MPC) asking for the compensation of their damaged property and plants as well as for the restoration of water sources and environment. The latter case ended in the Appeal Court as it upheld the District Court’s decision to dismiss the case by prescription.

In a trial and the process of seeking justice through the court, it is really sensitive and must be very careful especially in setting litigation issues. In this case, the villagers and the lawyers raised the occurrence of 10 tailing ponds leaking into water sources and damaging trees and plants of the villagers in 2013 for litigation. It was a lawsuit claiming compensation of 1,148 laks (1 laks = 100,000 kyats) from the company under Tort Law. Such claim referred to the rate which Italian-Thai Development Public Company Limited used to compensate the villagers affected by the Dawei Deep Seaport and Special Economic Zone Road Link Project (the compensation problem is still ongoing and many of the villagers have still not been compensated).

The lawyers in this case said that they needed to be very cautious due to the risk of prescription (as happened in the case of Myaung Pyo villagers accusing the same company). This type of case is a civil case with 3 year-prescriptive period which commences to run after the incidence, the prescription of the aforementioned case is still valid according to the Limitation Act (Article 22 and 23). The lawyers also added that even if the lawsuit was filed after such prescriptive period, they would still claim that the impacts of the mine still continuously happened until now as an ongoing harm.

In this lawsuit, the lawyers only referred to domestic laws which are Tort Law and Mining Law without any international laws. In accordance with causes of action, lawyer Saw said that the reason for raising the tailing pond leakage issue was because there were clear evidences showing that the company already knew that the tailing ponds would affect water sources and plants as well as block the community waterways.

“The Heinda Mine Report 2013 sending by the company to several relevant agencies was a crucial evidence obviously pointed out that the company’s engineer had certified the construction of tailing ponds which will affect the water sources. However, building such tailing ponds to block the waterways must be approved by the relevant authority, the company had no license from the Department of Mines. The Department of Mines itself has never been asked for permission by the company operating the Heinda Mine. During the trial, the in-house lawyer tried to deny that the company has caused neither the leakage of the tailing ponds nor the blockage of waterways, but we had explicit evidences collected by the villagers”, said the competent lawyer.

 

Verdict as predicted

As aforementioned, this case has already ended in the District Court on 7 January 2020, the court decided that MPC need to pay the full amount of compensation for 882 trees as requested by the villagers and their lawyers which is 114,800,000 kyats. It means that they are 100% successful according to their request in the lawsuit. The lawyers mentioned that the compilation of data and evidence pointing out the company’s mistakes as well as the cautious; compact and clear collection of damage information are keys of winning this case.

 

Appeal and next step in legal battle

As for an appeal, if the defendant which is MPC wants to appeal, it can do so to the Regional Court within 60 days. The plaintiff’s lawyers expect that the company will definitely appeal, there is however no confirmation at this moment.

The reason why the lawyers as well as True Friends organization believe that the company will appeal is that both sides fully exercised their rights during the trial. This case then took more than 5 years for investigation while other civil cases normally take only 2 years to obtain a court decision.

Nonetheless, the plaintiff in this case did not sue any government agency, namely No.2 Mining Enterprise who holds 35% of share in the said company, owing to the agreement stating that it is not a joint venture operator. Such government agency is merely a shareholder and beneficiary, the plaintiff therefore cannot hold it accountable. That is why government agencies are always not involved in the conflict and bad results which happened to the company, it is then difficult for the villagers to hold them liable.

Moreover, lawyer Saw added more information regarding Myanmar’s prescriptive period for appealing and court procedure as follow:

For appealing, the court is divided as “3+1”, 3 levels of court and 1 special appeal level:

(1) Township court or District Court

(2) Regional Court:  60 days of prescriptive period and the court normally takes 1-2 months for consideration

(3) Supreme Court: 90 days of prescriptive period, the case will be considered by 1 judge

(3+) Special Appeal Court: in case that the Supreme Court rejects to review the last judgment, there will be 90 days of prescription and the will be considered by 11 judges   

As for the trial, the procedure is the same as the appeal: 

(1) Township court or District Court

(2) Regional Court: the trial takes 1-2 months

(3) Supreme Court: the trial takes 4 months – 1 year

(3+) Special Appeal Court: the trial takes 1-2 years

 

Limitations in litigation and difficulties in holding relevant government sectors into account

Considering the lawsuit in question, it is dissimilar to the one filed by Myaung Pyo villagers against the company claiming compensation for the damages and restoration of water sources. The competent lawyer said that although the company’s operation apparently affected the water sources where people shared benefit, the villagers could not file a complaint asking the company for restoration of such water sources and overall environment, only the government could. Therefore, in order to claim the company for damage restoration, the government agencies must take a plaintiff role. It will be complicated for other villagers due to the prescription and the loss of some evidences, the claim will then be so weak. These are the differences when choosing legal issues to submit to the court.

 

Execution

As for the execution, if the case ends with a final decision, the lawyer needs to file a petition for compensation within 3 years according to 7 Procedures of Execution Decree. And in relation to Debtor Decree, the compensation must be paid within 2 years in full amount or installments depending on the agreement made with the court.

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