Unofficial/Translation Summary of the Supreme Administrative Court Decision to hear the case submitted by the Network of Thai People in 8 Mekong provinces challenging the Xayaburi Dam Power Purchase Agreement

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Date: 25 December 2015

Parties:

Mr. Niwat et al.                                               / The Plaintiff

Between           

Electricty Generation Authority of Thailand

National Energy Policy Office

Ministry of Energy                                                                                          /The Defendant

Ministry of National Resources and Environment   Cabinet

 

Re:         The disputes involving the administrative unit or officials have been omitted on legal compliance

Structure of Court Decision:

PART 1:                 Introduction & Fact extracted from the trial court and Prayer relief

PART 2:                 Defendant Statement

PART 3:                 Counter claims from the Plaintiff and the Defendant

PART 4:                 Court’s Analysis and Decision

 

PART 1:                 Introduction & Fact extracted from the trial court and Prayer relief

On August 7, 2012, there was the filing of a case in the Administrative Court of Thailand by affected villagers downstream from the Xayaburi dam in Laos. In this filing, there were around 80 villagers from the eight Mekong River provinces of Thailand submitting the lawsuit together with a further 1,000 signatures of Thai villagers supporting the lawsuit. Thailand will purchase 95% of the electricity produced by the dam after construction.

The Power Purchase Agreement (PPA) was signed between EGAT and the Xayaburi Power Company Limited in October 2011; however, this approval was likely in breach of a previous Thai Cabinet resolution, the Thai Constitution and the 1995 Mekong Agreement, which includes the Prior Consultation procedures.  While the PPA should only have been signed once regional obligations under the 1995 Mekong Agreement were fulfilled, Thailand went ahead and signed it while the Prior Consultation process for the Xayaburi Dam was still underway and before the Lao government had provided the studies and data requested by neighboring countries. The plaintiff is very concern about the consequences after the dam such as the loss of fish species and sedimentation; as well as the adverse impacts on biodiversity, food security, drought, agriculture and inundation.

In this case, the plaintiff wishes to bring the case against the defendant for 3 grounds which are: 1) the PPA between the EGAT and the Xayaburi Power Co., Ltd. is invalid; 2) the Procedure for Notification Prior Consultation and Agreement : PNPCA process including the legal compliance as provided by domestic laws has not yet been complied with.; and 3) the approval of the cabinet and other defendants to sign the Xayaburi PPA is not legitimate.

 

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On February 15, 2013, the Administrative Court of Thailand denied jurisdiction to hear the communities’ case based on three grounds:

  1. the plaintiffs are not considered injured persons as conditions and compliances set by the Cabinet before concluding the power purchase agreement are considered part of the internal administrative process;
  2. the power purchase agreement is binding for contractual parties, such as EGAT and the Xayaburi Power Company, therefore third parties like the plaintiffs are not considered injured persons; and
  3. although the defendants did not comply with PNPCA, such process is not considered an administrative act and therefore the court is not able to hear the case.

The Plaintiff filed an appeal on March 21, 2013 and the Thai Supreme Court made an order to accept the lawsuit on June 24th, 2014. Such order is, then, a reversal of a 2012 Lower Court decision which stated that Thai courts have no jurisdiction on this matter. The Supreme Administrative Court found that incomplete information disclosure and public participation and non-legal compliances under the Thai Constitution and the Office of the Prime Minister’s regulations on Public Consultation, B.E. 2548 are subject to an omission to act pursuant to Section 9 (2) of the Act on Establishment of Administrative Courts and Administrative Court Procedure. The plaintiff is a direct stakeholder and will be likely affected from the PPA as they are living and dependent on Mekong River. They shall fully take part in participating, protecting, promoting and conserving the environment including the bio diversity in order to meet with sustainability. The plaintiff is regarded as an injured person or likely be injured inevitably from such omission. The plaintiff, thus, can be entitled to bring the case to the Court according to Section 42 paragraph 1 of the Act on Establishment of Administrative Courts and Administrative Court Procedure. Unlike a justiciable wrongful act in the civil case, the plaintiff can seek remediation or the court’s enforcement to prevent negative impacts from the project for the sake of the nation, public interest and morality in this Court according to Section 42 paragraph 2 from the said Act. The Court, hereby, makes an order that the first and second grounds shall be upheld pursuant to the trial’s decision. Only the third ground shall be accepted and reverted to the trial for further adjudication.


PART 2:                 Defendant Statement

The Defendant responds that it follows all relevant domestic and international law to meet with its obligation.  It conducted the public consultations for 3 times nationwide and disclosed the information related to the dam as much as it get the consent from the Xayaburi Power Co., Ltd. The information has been uploaded in the website at www.eppo.go.th according to the Prime Minister’s regulations on Public Consultation. Moreover, the Lao government informed the Defendant that the PNPCA has been completed. The Ministry of Energy then informed the Electricity Generation Authority of Thailand that the cabinet and the National Energy Policy Office have fulfilled their obligations which are 1) the PNPCA has been completed based on the information from the Ministry of National Resources and Environment; 2) the General Attorney has already reviewed and provided comments for the Power Purchase Agreement; and 3) information has been disseminated in the website and other IT networks provided by the Prime Minister’s regulation prior to purchase electricity from the Xayaburi dam on 29 October, 2011.

PART 3:                 Counter claims from the Plaintiff and the Defendant

The Plaintiff has claimed its rights to bring a lawsuit against the Defendant according to the Thai Constitution 2007. The Plaintiff defended that the Defendant did not provide adequate information related to the Xayaburi dam that could have impacts on environmental quality and health issues, as well as the public consultation. All the 3 public consultations have had a reflection that the information is not enough for the affected community. The community requested further information such as data survey, studies on the Transboundary Impact Assessment, Resettlement Plan, Social Impact Assessment etc. However, such request has never been responded as the consent from the Xayaburi Power Co., Ltd. not granted. Although the information has been uploaded in the website, it has been limited and quite difficult to access. The Defendant has had responsibility to disclose information adequately and entirely but failed to comply under its responsibility under the law.

The Defendant the requested information has been belonged to the Xayaburi Power Co., Ltd. No one can disclose without its consent. The Electricity Generation Authority of Thailand is only the buyer not the owner of the Xayaburi dam based on the Power Purchase Agreement; therefore, it was not responsible for conducting the public consultation and studies related to environmental, health and social impacts according to the Constitution and other relevant law. The Defendant insisted that information disclose has been accessible adequately and properly without rights infringement. As the cabinet did not specify the means for information dissemination; therefore this means was widely and quickly dissemination with no time limitation. Although this project was not belonged to Thailand, the Defendant has done in the best manner to follow the Prime Minister’s regulations on Public Consultation and to conduct public consultations in order to collect concerns including the remedial measure from the affected communities so that this would be forwarded to the project owner accordingly. Such manner was met with the standard and similar with the Prime Minister’s regulation.

PART 4:                 Court’s Analysis and Decision

The Court had the first hearing on 30 November 2015 and received the fact from both parties. The issue of the case then was whether the Defendant failed to comply its responsibility prior to approve and validate the Power Purchase Agreement.

Given the fact from both parties, the Court found that information disclosure in the websites at www.eppo.go.th and the Office of the Permanent Secretary, Prime Minister Office was complete and met with the Thai Constitution. The National Energy Policy Office and the cabinet then did not fail their responsibility under the Constitution. Also, the Electricity Generation Authority of Thailand and the Ministry of Energy did not fail to follow the cabinet’s resolution and the Constitution. The Power Purchase Agreement was not regarded as a project or activity; therefore it was not necessary to conduct a study, evaluation and consultation. In other word, the Electricity Generation Authority of Thailand had no responsibility and did not omit to comply with the law in the case. Lastly, the Court found that the Ministry of National Resources and Environment through the Department of Water Resources completely fulfilled its responsibility to conduct public consultations according to the PNPCA.

The Court, hereby, dismisses the case.

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