Stakeholders' submissions to the MRC regarding hydropower
The MRC has received a large number of submissions from members of the public, civil society and other private organizations. A selection of these will continue to be posted on this page. A number of other submissions indicating individual preferences for or against dam projects were also received.
All submissions made to this forum will be passed onto the consultants currently writing the Strategic Environmental Assessment of the proposed mainstream Mekong hydropower dams.
Organisations
By: European Commission, Delegation to Thailand
Date: 2-Mar-2010
Subject: European Commission's official position on proposed hydropower schemes
Position of the EC on Hydropower Development
on the Mekong mainstream and on the Strategic Environmental
Assessment undertaken by the MRC
The EC fully supports the willingness of the Mekong riparian countries to develop the huge and largely untapped potential of the Mekong River for poverty alleviation and economic growth in the Mekong Region. If well planned and managed in a coordinated way, the proposed hydropower development on the Mekong mainstream may generate high economic benefits, in line with the "Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin" and in particular with article 1. The proposed hydropower development will not only generate a substantial amount of clean energy but will also allow for a better regulation of the river regime in order to reduce flood risks and to increase the dry season flow, This is essential to cope with the possible impacts of climate change, to develop navigation, to allow the extension of irrigated agriculture, and to fight against saline intrusion in the Mekong Delta. The EC considers that this major development program offers a very good opportunity for increased regional integration and for enhanced cooperation among all countries sharing the Mekong River, including China. It offers an opportunity for the MRC to strengthen its role and leadership as a promoter and facilitator of the economic development of the region. The EC appreciates the initiative of the MRC to undertake a Strategic Environmental Assessment. This study should clearly identify and estimate the necessary measures to protect ad compensate the communities who may be directly affected by flow changes and by a possible decrease of the fishing potential. It is recommended that this SEA study would be followed by the formulation and implementation of a basin-wide impact mitigation program, leaded and coordinated by the MRC.
David Lipman |
By: Hydropower and Community Rights Project at The NGO Forum on Cambodia, Phnom Penh, Cambodia
Date:30-Nov-09
Subject: -
Content:
1. Energy and Power
2. Transboundary Implications
3. Public Participation and Access to Information
4. Poverty Reduction
5. Law Enforcement and Legal Recourse
6. Conclusion
1. Energy and Power: The NGO Forum questions the sustainability of hydropower development on the Mekong mainstream given the serious implications these dams will have on the millions of people who live along the Mekong River by adversely impacting fisheries, livelihoods, food security, and the region’s work towards poverty alleviation. For this reason, we would like to strong urge the MRC to first carry out a comprehensive energy options assessment in the Mekong region, which studies both centralized vs. decentralized energy generation options and various energy technologies. As Cambodia is abundant with solar, biomass, mini-hydro and natural gas opportunity and already has an electricity sector in place that is decentralized, these more sustainable energy options should be first fully researched as a replacement to large dams. The MRC and Mekong member countries should be required to first demonstrate that dams on the mainstream Mekong is the best possible option towards meeting the energy’s needs and the sustainability of the Mekong River, prior to beginning the SEA process. This will help ensure that member countries are in a position to make informed decisions regarding the future of the Mekong River. 2. Transboundary Implications: For more than a decade, Vietnam’s Yali Falls dam has negatively impacted thousands of downstream communities living in Cambodia on the Sesan River. These communities’ lives continue to be heavily affected by fluctuating water levels, fear of floods and health problems due to the river’s degrading water quality, and the subsequent decline in riverine resources upon which these communities are dependent. Fish stocks and species have dramatically declined as a direct result of poor water quality, changes to the river’s flow, and blocked migration routes, leaving countless people without enough food or nutrition. More than 30 Cambodians are known to have drowned due to Vietnam’s water releases. Communities have yet to be compensated and impacts have yet to be resolved. Despite Article 8 of the MRC’s 1995 Mekong Agreement calling for resolution of negative impacts prior to the construction of new projects, Vietnam has continued to build additional dams. The case of the Sesan River exemplifies the fact that the Mekong member countries continue to lack the necessary dispute resolution and legal resource mechanisms necessary for large scale hydropower development on shared rivers. Until mechanisms are established to ensure that cross-border disputes along the Mekong’s tributaries are fairly resolved, further hydropower plans for the Mekong River should not be considered nor assessed given the fact that the transboundary implications are likely to be even greater than those on the tributaries and are likely to impact transboundary relations thus placing the security of millions at risk. 3. Public Participation and Access to Information: According to international “best practice” dam building standards as outlined by the World Commission on Dams1, meaningful public participation should occur during all stages of dam development in order to properly assess environmental, social and economic impacts of the project, to effectively mitigate impacts, and to help ensure that the project is socially and environmentally acceptable. By incorporating public participation and consultation in the planning and decision-making processes, it can help ensure that informed decisions are made in order to ensure that the benefits of the project outweigh the risks, so that the project can contribute to the sustainable development of Cambodia. The millions of local people who live along the Mekong mainstream and will be impacted by these dams should be regarded as key stakeholders in the SEA process. Cambodians also have a right to public participation in accordance to Article 35 of the Constitution. For this reason, we would like to highly recommend that the MRC carry out a meaningful public participation process in order to ensure that local communities are properly informed of the SEA and the planned Mekong dams, so that local communities can help ensure that the SEA report covers all potential impacts of the project and provides recommendations suitable to the needs of the local people. In order for meaningful public participation to take place, access to information pertaining to the projects’ feasibility studies, EIAs, project design information and the SEA is necessary. As the public has yet to access project documents related to Sambor, Stung Treng and other Mekong mainstream dams, clear mechanisms should be established in order to ensure project transparency and that information is available in local languages. 4. Poverty Reduction: One of the stated purposes of the SEA is to identify the potential opportunities and risks as well as contribution of hydropower to regional development through an assessment of the regional distribution of costs and benefits with respect to economic development, social equity and environmental protection. However, in order to effectively assess the costs and benefits of these projects, the impacts these dams will have on the millions who live along the Mekong River and the Royal Government of Cambodia’s commitments to poverty reduction should be considered first and foremost. For this reason, we would like to recommend that the SEA be required to carry out a comprehensive cost-benefit analysis of the projects in respect to the local communities who will be impacted by the dam, in addition to the regional distribution of costs and benefits analysis. Local communities should be considered key beneficiaries and assessed to determine whether or not communities would have guaranteed improved lives after project development. 5. Law Enforcement and Legal Recourse: Prior to assessing the Mekong mainstream dams, a strong legal framework with compliance should be in place in each of the Mekong countries, in order to ensure that inter-ministerial communication, multi-stakeholder approaches and cooperation are in working order. Laws related to hydropower, resettlement, Environmental Impact Assessment guidelines, benefit sharing, etc., must first be in place in Cambodia and be enforced prior to considering or assessing any of the Mekong dams. We would also like to recommend that regional standards related to hydropower development on the Mekong River mainstream are first developed and placed into each respective countries’ national laws, along with the articles of the 1995 Mekong Agreement, to better ensure cross-border cooperation and understanding. In addition, all potentially directly affected people in Cambodia should have registered land titles in place to ensure fair compensation for their property. The proposed dams in Cambodia should also be required to demonstrate that they serve the interest of the Cambodian public prior to assessing the cascade of Mekong dams, as Cambodia’s land law states no individual can be deprived of their land unless it is deemed in the public interest. If the SEA occurs, it should clearly state how enforcement of the resettlement, compensation and mitigation measures will be ensured, along with proof that the project serves in the interest of the public. It should also state what legal recourse citizen groups and communities will have in the event that problems arise. 6. Conclusion: In conclusion, the NGO Forum believes the issues raised above must be addressed prior to the SEA implementation, in order to ensure that the SEA can adequately fulfill its stated objectives. As the MRC was founded with the intention of assisting member countries to cooperate and promote the sustainable management of the Mekong River in a mutually beneficial manner, we request that the MRC seeks a halt to Mekong dam planning by member countries until the members can guarantee the future sustainability of the Mekong River and the rights of the communities living along it. 7. References: The following documents are available for reference and consideration within the SEA. For copies of any of these reports, please contact NGO Forum.
For more information, please contact: The NGO Forum on Cambodia Website: www.ngoforum.org.kh |
Date:11-Aug-09
Subject: A Rational Approach to Hydropower
Development in the Mekong A proposal for a science-based
Dialogue
Background:
Hydropower is an attractive form of energy production
in many ways. All it basically requires are water and gravity.
It is often a very competitive form of energy generation
in terms of cost-benefit analysis. In most cases it will
produce less greenhouse gases than the burning of fossil
fuels to generate energy, and hydropower operation does
not generate other forms of pollution directly harmful to
human health. On the other hand, hydropower can have a huge
variety of negative impacts on the quantity and timing of
water flows, the quality of water (temperature, dissolved
oxygen, etc) the silt load carried by the water etc. as
well as the barrier effect it has on migratory fish Each
of these in turn can have wide ranging impacts on aquatic
ecology and local livelihoods.
| Given that economies of the Mekong Region are growing and energy demands are increasing, it is understandable that some of the region’s energy demand should be met from hydropower. However people in the lower Mekong Basin are extremely dependent upon aquatic resources for food security (especially protein) and as a source of livelihood. LMB Fisheries have been valued at $3 billion annually, so any hydropower development should pay very high attention to possible negative impacts on fisheries. The vast majority of this productivity is located from Southern Laos/NE Thailand downwards through Cambodia (including the Tonle Sap) to the Mekong Delta. Many economically important fish species (as well as IUCN red-list species) in the Mekong are long distance migrants. For example 75% of the fish catch in the Tonle Sap depends on fish that migrate north to Siphandone and beyond. Current concerns about on Mekong mainstream dams Proposals for a cascade of 11 dams on the Lower Mekong Mainstream have aroused a lot of concern. Most recently, on 19th June 2009 at the Informal Donors Meeting of the MRC in Vientiane, the official development partners statement (endorsed by Sweden, Finland, Denmark, Netherlands, Germany, Australia, Belgium USA, Japan, ADB and WB) stated the following: “We are all aware of the extensive construction and the many new plans for hydropower dams and diversions in the Mekong River Basin, including more recently, the resurgence in interest in dams on the Mekong River mainstream. We acknowledge the benefits hydropower can bring and understand nations will pursue their sovereign right to develop natural resources in line with national development aspirations. We also underscore the critical need for a full understanding of both positive as well as negative social, economic and environmental impacts of hydropower and diversion investments” At the same time the civil society “Save the Mekong” coalition met with the Thai Prime Minister and submitted a petition calling for the lower Mekong mainstream to be kept dam free. The Thai PM promised to table a discussion on this at the next ASEAN meeting in Phuket. MRC has contracted consultants to develop a SEA for the entire mainstream cascade, and the Lao Ministry of Energy and Mines has contracted consultants to undertake an electricity generation optimization study for the part of the cascade in Northern Laos. The MRC Fisheries programme together with WorldFish, are modeling the likely impacts of mainstream dams on migratory fish and fisheries productivity. WWF is proposing a 10 Year Moratorium on Mainstream Dams and investigating possible alternatives. A proposed Regional Dialogue for Rational Development of Hydropower in the Mekong Basin It is proposed here that IUCN’s Mekong Region Water Dialogues (MRWD) programme could add value to all of these ongoing discussions by organizing a time-bound Dialogue on “A Rational Approach to Hydropower Development in the Mekong Basin”. The dialogue would run for 6 months from October 2009 to March 2010. The output from the Dialogue would be a set of recommendations for a more rational approach to hydropower development in the Mekong Basin that provides the required energy (and especially a source of foreign revenue for Lao PDR) in a way that minimizes social and environmental impacts. With the required buy-in to the Dialogue process from MRC, these recommendations could be delivered at a high profile event in Lao PDR in April 2010 when the MRC intends to celebrate the 15th Anniversary of the Mekong Agreement with a planned “Mekong Summit” involving the Prime Ministers of the 4 lower Mekong countries Initial Ideas for Dialogue Content A starting point for the dialogues could be discussions following three different themes or strands based on the understanding that attempts to limit the negative impacts of any additional hydropower development on Mekong fisheries and fisheries-dependent livelihoods should start from: a) a region-wide assessment of real energy needs and options for meeting them As most of the proposed mainstream dams are intended to meet the energy demands of Thailand, this is a a critical starting point. There is a need to discuss
a) a basin-wide perspective of where any new hydropower projects should be optimally located This should follow a number of basic principals regarding large-scale impacts on fisheries, including:
Based on the above we should first seek to maximise energy production from cascades of dams on more upstream tributaries of the basin that already have one or more existing dams in place and only after that put dams on previously undammed tributaries further downstream. Only after all of this, and if there is still a strong justification for even more hydropower should we even begin to consider Mekong Mainstream dams. c) Viable alternatives to currently proposed Mekong mainstream dams There is a need to discuss and identify alternatives that:
|
Date:11-Aug-09
Subject: Hydropower Development on
the Mekong Mainstream in the Lower Mekong Basin Initial
Perspective from IUCN
1. The role of hydropower for long-term development in the Mekong Region
Hydropower is an attractive form of energy production
in many ways. All it basically requires are water and gravity.
It is often a very competitive form of energy generation
in terms of cost-benefit analysis. While it is not true
to say that hydropower production does not emit any greenhouse
gases ( production can actually be quite high especially
in shallow reservoirs with large surface area in tropical
conditions) in most cases it will produce less greenhouse
gases than the burning of fossil fuels to generate energy.
Hydropower operation does not generate other forms of pollution
directly harmful to human health.
| On the other hand, hydropower can have a huge variety of negative impacts on the quantity and timing of water flows, the quality of water (temperature, dissolved oxygen, etc) the silt load carried by the water etc. and each of these in turn can have wide ranging impacts on aquatic ecology and local livelihoods. Given that economies of the Mekong Region are growing and energy demands are increasing, it is understandable that some of the region’s energy demand should be met from hydropower. However people in the lower Mekong Basin are extremely dependent upon aquatic resources for food security (especially protein) and as a source of livelihood. LMB Fisheries have been valued at $3 billion annually, so any hydropower development should pay very high attention to possible negative impacts on fisheries. Attempts to limit the negative impacts of any additional hydropower development on Mekong fisheries and fisheries-dependent livelihoods should start from a basin-wide perspective of where any new hydropower projects should be optimally located. This should follow a number of basic principals regarding large-scale impacts on fisheries, including:
Based on the above we should first seek to maximise energy production from cascades of dams on more upstream tributaries of the basin that already have one or more existing dams in place (Nam Ngum, Nam Theun, Nam Hinboun. Only after that put new dams on previously undammed more upstream tributaries (eg Nam Ou, Nam Kan, etc) and only after that put dams on previously undammed tributaries furthr downstream (eg Xe Bang Hien). Only after all of this, and if there is still a strong justification for more hydropower should we consider Mekong Mainstream dams. 2. Important trade-offs in the future development of hydropower on the Mekong River mainstream LMB fisheries are valued at $3 billion/year. The vast majority of this productivity is located from Southern Laos/NE Thailand downwards through Cambodia (including the Tonle Sap) to the Mekong Delta. Many economically important fish species in the Mekong are long distance migrants. For example 75% of the fish catch in the Tonle Sap depends on fish that migrate north to Siphandone and beyond. Dramatic reduction in these fisheries, and the livelihoods and food security they provide, will be the single biggest trade-off to consider. In this context, all other things being equal, dams further downstream will have a proportionately larger impact on blocking the migration routes and reducing fisheries productivity than dams located further upstream (as is generally the case in all large river systems). In this case proposed dams at Sambor, Stung Treng, Don Sahong, Lat Sua, and Ban Koum, will have much more severe negative impacts on overall fisheries productivity than proposed dams at Pak Chom, Sanakham, Pak Lay, Xayaboury, Luang Prabang and Pak Beng. 3. Existing hydropower planning systems in Mekong countries and effectiveness in addressing social and environmental issues Quality of hydropower planning is very variable, on a case by case basis. Sometimes it is done well, and sometimes not. In any case though, it is mostly project-specific. There is very little done in the way of Cumulative Impact Assessments. Efforts are being made to standardize EIA requirements, but the capacity of e.g. WREA in Laos to deal with processing a rapidly increasing number of EIAs effectively is quite limited. Many new players are coming into the scene as Mekong hydropower financiers – from Russia, China, Malaysia, etc. Some of them have no previous experience in hydropower, and so far we have no way of telling how effectively they will approach social and environmental aspects of hydropower development. 4. Long-term issues that need to be taken into consideration when planning hydropower development on the Mekong Mainstream For Lao PDR developing hydropower to sell electricity to Thailand and to a lesser extent Vietnam and Cambodia is a clear strategy to generate foreign exchange revenue, under the oft-stated slogan of becoming “the battery of Southeast Asia”. It is therefore considered as being “very important” in this respect. Although some hydropower is used to provide electricity for local use, large-scale centralized production is not the most sensible way to meet the needs of rural electrification in countries like Laos and Cambodia where there are large numbers of relatively small and remote communities, and very limited development of the national grid systems. More dispersed small-scale local production from solar, wind, biomass, and micro-hydro will provide a more cost-effective and faster means for rural electrification in these circumstances. Energy security comes from having a diversity of energy sources, not over emphasizing a single source such as hydropower. Mekong hydropower will largely be developed in Laos for sale to Thailand. It is not really an issue of energy security in either country.Although hydropower is relatively low cost, the investment is coming from external financiers. In this case the relative cost of hydropower versus other sorts of energy is not so important to the investors as the relative profitability of investing in hydropower versus investing in other energy/infrastructure projects. 5. Other issues that should be taken into account for the planning of hydropower on the Mekong River mainstream There is a need to directly involve the primary stake-holders (those who will be directly affected) in the planning and decision-making processes. These individuals and groups should include (but not necessarily be limited to):
6. The most important issue of all Most definitely the impacts on fisheries
and fisheries-related livelihoods are the most important
issue. |
By: Mekong Legal Advocacy Institute
Date:1-Dec-09
Subject: Trans-boundary impacts
The Mekong Legal Advocacy Institute is submitting
these comments on the proposed Strategic Environmental Assessment
of Lower Mekong Mainstream Dams, with regard to Burma. We
note first that there will be little impact on Burma from
Lower Mekong Dams. In addition, Burma is beset by a military
dictatorship (the SPDC) that rules without respect for rule
of law and without impunity for egregious human rights violations.
There has been no valid constitution since 1988, and many
laws are enforced only to benefit the SPDC and its cronies.
| The US State Department 2008 Country Report on Burma (http://www.state.gov/g/drl/rls/hrrpt/2008/eap/119035.htm) states: "The judiciary is not independent of the government. The SPDC appoints justices to the Supreme Court, which in turn appoints lower court judges with SPDC approval. These courts adjudicate cases under decrees promulgated by the SPDC that effectively have the force of law. The court system includes courts at the township, district, state, and national levels. While separate military courts for civilians do not exist, the military regime frequently directs verdicts in politically sensitive trials of civilians. "The government continue[s] to rule by decree and [is] not bound by any constitutional provisions providing for fair public trials or any other rights. Although remnants of the British-era legal system remain formally in place, the court system and its operation [are] seriously flawed, particularly in the handling of political cases. The misuse of blanket laws--including the Emergency Provisions Act, Unlawful Associations Act, Habitual Offenders Act, Electronic Transactions Law, Video Act, and Law on Safeguarding the State from the Danger of Subversive Elements--as well as the manipulation of the courts for political ends continue[s] to deprive citizens of the right to a fair trial and to stifle peaceful dissent. Executive Order 5/96, which provides for the arrest of any person deemed a threat to the National Convention and the "roadmap to democracy," effectively stifle[s] open debate among citizens. Pervasive corruption further serve[s] to undermine the impartiality of the justice system." With this state of affairs, there is little reason to believe that local people will have the right to information or participation. In addition, any attempts to perform EIA or provide compensation are invariably twisted and eventually stolen by the SPDC. Thus dam building and other development in the country cannot be condoned, as it will only benefit the rich and powerful, and local people will be abused, tortured and killed if they make any attempt at voicing their concerns. See www.salweenwatch.org and members' reports therein for more details. |
By: Mekong Legal Advocacy Institute
Date:1-Dec-09
Subject: Trans-boundary impacts (Mekong Country's Laws related to dams - Thailand)
These comments regarding Thailand's laws and
legal aspects of the assessment of mainstream dams on the
Mekong are submitted on behalf of the Mekong Legal Advocacy
Institute in Chiang Mai, Thailand. We address five core
legal issues with regard to dam construction and operation:
(a) Public Access to Information, (b) Public Participation,
(c) Requirements for producing and enforcing Environmental
Impact Assessments (EIA), (d) Preventing, avoiding or mitigating
environmental impacts, and (e) Land confiscation, Compensation
and Resettlement concerns.
| Each of these issues has a direct impact not only on the procedural steps required for building and operating dams, but also the livelihoods of people living all along the Mekong River who depend on a thriving, free-flowing river for their very existence. Therefore, it is incumbent upon MRC to be aware of, follow and enforce these legal provisions throughout the process of the Strategic Environmental Assessment. Finally, we address the regional legal perspective, noting that in order to protect the livelihoods of all Mekong Region inhabitants, harmonization of relevant laws within each country and across borders must occur. We note initially that Thailand has many well-developed laws concerning public advocacy, environmental protection and resettlement. This is especially true of Thailand's 2007 Constitution. Unfortunately, underlying laws are nonexistent, and the constitutional provisions are poorly implemented. Therefore, unscrupulous officials and corporations often ignore them with impunity. Legal authorities other than the 2007 Constitution of Thailand have been extracted from Mekong Region Water Resources Decision-making: National Policy and Legal Frameworks vis-à-vis World Commission on Dams Strategic Priorities, IUCN (2006), Available online at http://cmsdata.iucn.org/downloads/mekong_region_water_resources_decision_making.pdf. Public Access to information Thailand's 2007 Constitution has several sections that guarantee free information from the government and provide for public participation. Section 56 of the Constitution states: "A person shall have the right to gain access to public information in possession of a state agency, state enterprise or local government organization, except if it will affect state security or public safety." Also, "A person shall have the right to receive information, reasons, and explanation from a state agency, state enterprise or local government organization before permission is given for implementation of any project or activity which may affect the quality of environment, health, and sanitary conditions, quality of life or other material of interest to him or her or a local community and shall have the right to express his or her opinion on such matters to agencies concerned for consideration." These provisions are a new idea in Thailand, where the powerful bureaucracy is historically quite secretive. Attempts to gain access to government studies have had mixed success, but recent NGO efforts to gain access to the Environmental Impact Assessment for EGAT's Hatgyi Dam in Burma were successful thanks to the intervention of Thailand's National Human Rights Commission (NHRC). The precedent of this case, which involves releasing information anathema to the military junta that rules Burma, provides hope for future efforts with respect to Mekong dams. Public participation Constitutional provisions that provide for public participation include: Section 58: A person shall have the right to participate in the decision-making process of state officials in performance of the administrative functions which affect or may affect his or her rights and liberties. Section 59: A person shall have the right to present a petition and to be informed about the result of its consideration within the appropriate time. Section 60: The right of a person to sue a state agency, state enterprise, local government organization, or other state authority which is a juristic person to be liable for any act or omission by its government official, official or employee shall be protected. Section 67: The right of a person to give to the state and communities participation in the preservation and exploitation of natural resources and biological diversity and in the protection, promotion and preservation of the quality of environment for usual and consistent survival in the environment which is not hazardous to his or her health and sanitary conditions, welfare or quality of life, shall be protected. The right of a community to sue a state agency, state enterprise, local government organization or other state authority as a legal entity to perform the duties as provided by paragraph one and paragraph two shall be protected. Section 87: The state shall implement the Public Participation Policy as follows:
The Royal Decree on Guidelines and Procedures on Good Governance, 2003 states that public hearing are required prior to operating a government project.
These public participation laws are strong on paper, but there are serious impediments due to the "powerful figures" who use force, threats and intimidation to scare people from participating. Thai Laws Regarding Use and Regulation of Water, a Public Resource The 1992 Civil and Commercial Code states that "water belongs to the State and is therefore regarded as public property." The Promotion of Energy Conservation Act, 1992 states that the National Committee on Energy Policy has the authority to issue any measures related to national energy, including water resources. The Metropolitan Waterworks Act, 1967 allows private entities to construct and operate their own waterworks systems in certain areas. The Private Irrigation Act, 1939 authorises individuals or groups of individuals to acquire and develop water resources by means of private irrigation systems. These water-related laws and regulations provide leverage to public efforts to ensure that local people's voices are heard when planning and operating hydropower plants. EIA requirements The requirement for EIA in Thailand
first arose in the early 90's. According to the
Annex to the Ministry of Science, Technology and
Environment Notification, 1992, EIA reports must
provide information on, and an analysis of: During the EIA preparation process, consultations among relevant agencies, representatives of local communities and independent experts are required. Additional Ministerial Notifications up until 2000 state that EIAs are required for national and sub-national water development plans. According to The 2007 Constitution, Sec. 67, "Any project or activity which may seriously affect the quality of environment shall not be permitted, unless its impact on the quality of environment have been studied and evaluated and opinions of an independent organization, consisting of representatives from private environmental organizations and from higher education institutions providing studies in the environmental field, have been obtained prior to the operation of such project or activity." Furthermore, the EIA must include opinions of an independent organization, consisting of representatives from private environmental organizations and from higher education institutions. These EIA provisions are quite specific, but in many cases Thailand lacks the political will or expertise to fulfill them. Further, the release of many EIAs is prevented by overzealous bureaucrats guarding their administrative turf. This prevents fully informed participation by the affected public, and must be overcome to produce effective EIAs that protect the environment while allowing sustainable development to proceed. Avoiding or mitigating environmental impacts The 2007 Constitution also contains specific provisions aimed at protecting the environment. Constitution Section 84 states that "The state shall implement the land, natural resources, and environment policy as follows: (4) preparing systematic management plan for water and other natural resources for the common interests of the nation, and encouraging the public to participate in the preservation, conservation and exploitation of natural resources and biological diversity appropriately; (5) conducting the promotion, conservation
and protection of the quality of the environment
under the sustainable development principle, and
controlling and eliminate pollution which may affect
health and sanitary, welfare and quality of life
of the public by encouraging the public, the local
communities and the local governments to have participation
in the determination of the measures.." However, violence and intimidation aimed at activists and lawyers, combined with bureaucratic delays and lack of capacity, as well as bribery and kickbacks between companies and government officials, mean that these provisions lack effectiveness in many cases. For example, the noted Thai Human Rights lawyer Somchai Neelaphaijit was kidnapped in 2004 and is presumed dead due to his outspoken defense of Muslims in southern Thailand, effectively intimidating and silencing many other Thai activists and lawyers. See http://news.bbc.co.uk/2/hi/asia-pacific/4608594.stm. Land confiscation, Compensation and
Resettlement issues
"The expropriation of immovable
property shall not be made except by virtue of the
law specifically enacted for the purpose of public
utilities, necessary national defence, exploitation
of national resources, town and country planning,
promotion and preservation of the quality of the
environment, agricultural or industrial development,
land reform, conservation of ancient monument and
historic sites, or other public interests, and fair
compensation shall be paid in due course.." These laws are also subject to pervasive corruption within Thailand, and legal efforts aimed at getting compensation are extremely rare and take decades. For example, Thailand recently paid 1.2 million baht to Hai Khanjantha, also known as Grandma Hai, who fought to reclaim her submerged land from the construction of Huay La Ha reservoir 32 years ago. Regional Message from MLAI on Mekong Mainstream Dams Every Mekong country has its own legal and political systems. These systems vary widely, some work to protect economic interests at the expense of others, while some countries attempt to seek a balance between economics, environment and local people's livelihoods. Some have laws that provide access to information and seek public participation, while other countries shun or even suppress the voices of their citizens. We urge the adoption of standardized laws, policies and procedures that control watershed planning, protect aquatic ecosystems and water resources, regulate dam construction, relocation and compensation, and address the wide range other issues surrounding dam construction across the Mekong Region, before the livelihoods of millions of people are irretrievably damaged. This will involve two levels of action.
First, individual governments need to harmonize
their own legal regimes across all sectors, in order
to balance competing interests while protecting
the environment and local livelihoods. Second, governments
throughout the region must harmonize their legal
regimes governing water resources across borders
to provide uniform policies and procedures to all
people affected by Mekong Dams.
|
By: Samreth Law Group in Cambodia and the Mekong Legal Advocacy Institute in Thailand
Date: 1-Dec-09
Subject: Legal framework for water resource management in Cambodia
1. Introduction
The Mekong basin is critical to Cambodia, covering
more than 84% of Cambodian territoryM1.
The Royal Government of Cambodia (RGC) is building hydro
powered dams at Kamchay, Stung Atay and Lower Stung Russey
Chrum, Kirirom III and Tatay, with 10 other projects undergoing
feasibility studies and 13 Memorandums of Understanding
signed2. A pre-feasibility
study has been completed for the Sambor Hydropower Project
on the mainstream Mekong, 35 km north of Kratie province,
and a pre-feasibility study is being prepared for the Stung
Treng dam on the mainstream Mekong in Stung Treng province
as well3.
| Article 59 of the Cambodian Constitution says the State shall establish a “precise plan of management [emphasis added]” for natural resources such as water. An objective of the RGC is: “In developing hydropower resources, the Government will carefully analyze all aspects involved, especially the economic benefits, and the environmental and social benefits.” Although the RGC has started to develop a legal framework, including water resource management, “the lack of a clear policy and legislation on dam management, exacerbated by weak compliance with, and enforcement of existing relevant legislation, remain critical constraints to the sustainable use and conservation of natural resources and biodiversity in Cambodia.” Also, the institutional structures and functions of relevant line ministries in Cambodia dealing with water resource management are highly compartmentalized, lacking mechanisms for coordination and feedback and regulatory responsibility. In this context, Samreth Law Group and the Mekong Legal Advocacy Institute (MLAI) believe any assessment of dams on the Mekong mainstream should be delayed until there is precise plan of management for the use of water relating to hydro powered dams, which allows for careful assessment of the cost and benefits of such projects. Article 9 of the Water Resources and Management Law states that Ministry of Water Resources and Meteorology (MOWRAM) shall be responsible for preparing a national water resources plan. This plan should, as a minimum, address in detail the following issues: a. public
participation; Although the topics for the MRC scoping study do not include legal issues, Samreth law Group and MLAI are of the view they should be included in any adequate scoping study. This paper addresses the legal aspects for each of the five issues listed above in relation to hydopower dams Cambodia. 2. Public participation Public participation is a fundamental right for Cambodians. Article 35 of the Constitution states; “Khmer citizens of either sex shall be given the right to participate actively in the political, economic, social and cultural life of the nation” and “[any] suggestions from the people shall be given full consideration by the organs of the State”. By law, there is a positive duty on the RGC to encourage public participation. Article 7 of the Water Resources and Management Law (WRML) states; “The Royal Government of Cambodia shall encourage the collaboration with and participation of the relevant agencies, private sectors, beneficiary groups, NGOs and International Organizations in all activities related to the management, investment, exploitation, conservation and development of water resources.” Article 16 of the Environmental Protection and Natural Resource Management Law (EPNRML) states; “The Ministry of Environment shall, following proposals by the public, provide information on its activities, and shall encourage participation by the public in environmental protection and natural resource management”. However, the legal framework does not provide clear procedures for Cambodian citizens to realize their right to participate or for the RGC to fulfill this duty. Under article 17 of the EPNRML, the government is meant to issue a sub-decree on the procedures for public participation; however this sub-decree is yet to be adopted. The draft Environmental Impact Assessment (EIA) Guidelines do contain some requirements for public participation, although they too lack detail (see EIA section below). The public participation of affected communities in dams currently being built in Cambodia has been limited. For example, “[approximately] 30,000 people living upstream will be negatively affected by construction and operation of the Lower Sesan 2 dam, and tens of thousands more downstream. However, only a few hundred people were consulted, and without proper documentation”6. Here, public participation fell short of the standard set out in the Cambodian Constitution. Until there are clear procedures in Cambodia for public participation for all relevant stakeholders, including illiterate and indigenous people in a dam project’s identification, construction, operation and decommissioning, decisions on whether to build dam projects on the mainstream Mekong should be postponed. Additionally, as dams planned for the Mekong mainstream require prior cross-border consultation by the state in accordance with the Mekong River Commission’s Procedures for Notification, Prior Consultation and Agreement, the RGC should publicly announce how it will incorporate public participation into the process of agreement. Otherwise, it is not possible to show there is acceptance of a project on the part of stakeholders before a proposed hydropower project is approved. Greater public participation will also lead to more informed decision-making processes and also lead to fewer post-construction disputes. 3. Access to information Meaningful public participation in the management of water resources is heavily dependent upon access to information of project documents, including pre-feasibility studies, EIA reports and project design and operation reports. Lacking a strong tradition of public participation in environmental assessment and without detailed procedures, the public has difficulty asserting its right of access to information. Article 16 of the EPNRML states; “The Ministry of Environment shall, following proposals by the public, provide information on its activities”. The draft EIA guidelines provide for “focus group discussions” to “inform the public about development projects”, however no further detail is provided (see EIA section below). Article 8 of the WRML does provide for a publicly available inventory of the location, quantity and quality of water resources in Cambodia; “except those classified as confidential”. As there is no detail as to what information will be classified as confidential, this exception is too wide. Also, the 3S Rivers Protection Network (3SPN) sent letters to the CNMC and VNMC requesting hydrological data and rainfall data on the Srepok River, but no response was ever given. There are still no detailed procedures for the provision of adequate information about water resources relating to dams in Cambodia. 4. Environmental Impact Assessment (EIA) requirements Article 6 of the Law on Environmental Protection and Natural Resources Management establishes a general EIA requirement “on every project and activity whether private or public and shall be examined and evaluated by the Ministry of Environment before it is submitted to the Royal Government for a decision”. A list of those projects requiring an Initial EIA (IEIA) and/or EIA was included in the Sub-decree on the EIA Process, and includes hydropower dams. However, there are still no official EIA guidelines in place. Draft guidelines and a draft prakas (declaration) on the implementation of the guidelines were released for public comment in February 2008. A second “Draft General Guidelines for EIA” was released in late 2008. These require that a short initial EIA is prepared for a proposed project and reviewed by the MoE. If it is revealed that there are “severe social and environmental consequences, the project owner will be required to prepare an EIA.” The term “severe” is not defined. The Rivers Coalition in Cambodia (RCC) made the following recommendations to the Ministry of Environment (MoE) on the content of the February 2008 draft guidelines:7 a. more detail
is needed in the minimum content of an EIA; The Human Rights Program at Harvard Law School (HRPHLS) also wrote a letter to the EIA Department at the MoE outlining procedural and substantive concerns on public participation, institutional review and approval and post-EIA safeguards8. As the September 2008 draft EIA guidelines have not substantially changed from the February 2008 draft, the comments of the RCC and HRPHLS are still valid. Furthermore, Sam Chamreoun, Director, Department of Environmental Planning and Legal Affairs, Ministry of Environment, states that managing and enforcing EIA requirements in Cambodia faces a number of obstacles:9 "First, EIA requirements are not well known, and various sector ministries and project owners are therefore not yet applying them. The authority of the Ministry of Environment to enforce the requirements appears to be limited by these circumstances. Another problem is the limited capacity within Cambodia to conduct EIAs.” Finally, there is currently no law in place in Cambodia detailing when a cumulative impact assessment is needed and required. Given that a cascade of dams is planned on the Lower Mekong River, a cumulative impact assessment should be deemed necessary in order to fully assess the project’s feasibility and impacts. Procedures on how to carry out this cumulative study should also be established prior to any decision-making process for a project planned where numerous projects are located. 5. Avoiding or mitigating environmental impacts Cambodia is the fourth largest freshwater fish producing country in the world after China, India and Bangladesh; some 850 species of fish have been reported on the Tonle Sap lake and lower reaches of the Mekong River10. It is also estimated that more than 70% of the total fish catch in the Mekong basin is dependent upon fish migrations, and the mainstream Mekong is the corridor for most long-distance migrations. Dams on the mainstream Mekong, especially in the middle and lower parts of the Mekong, including Cambodia, will therefore have a greater impact on fisheries than dams on tributaries and the upper parts of the Mekong11. The impact to fisheries would also likely cause significant impact on people’s food security, health and nutrition, as more than 80% of Cambodia’s population depends on fish as a main source of animal meat protein12 MRC research notes that the Sambor rapids and associated deep pools are important fish habitats, particularly for spawning and refuge purposes. The construction of the Sambor dam would have “significant” impacts on migratory fish stocks 13. Furthermore, an international expert group recently found that based on available information there is not at present any technological solution to enable effective fish migration across dams, and any dam on the mainstream Mekong in the middle and lower parts “will have a major impact on fisheries and serious economic and social implications”14. There is a requirement in the draft EIA guidelines for an Environmental Management Plan for each project that must include a summary of protection measures, trainings and a monitoring schedule. The significant environmental impacts to fish stocks and associated social and economic impacts alone underline why a more detailed and precise legal framework to regulate dams is needed before projects can be properly assessed and built. 6. Land confiscation and resettlement issues The construction of large hydropower projects raises serious issues regarding resettlement and compensation. By its Constitution and Land Law, the RGC is required to provide fair and just compensation in advance for any taking of land15. These provisions are bolstered by international conventions to which Cambodia is a party. For example, the Convention on Economic, Social and Political rights provides a strict framework for eviction and resettlement procedures and minimum standards. However, these legal principles are not being adequately implemented16. Local communities are often evicted in a process that lacks due process or adequate compensation for their loss of land and livelihood, despite domestic and international law obligations. This includes the communities being resettled due to the dams currently being built in Cambodia. While estimates vary, it is likely that tens of thousands of families will be affected by mainstream dam operations. The proposed project locations suggest that the poorest sectors of society, those most completely reliant on the land for their livelihoods, will be the most adversely affected. The RGC is currently in the process of drafting a Resettlement Law and a Circular on Informal Settlements. In Samreth Law Group’s and MLAI’s opinion, it would be beneficial if more detailed legal procedures are developed, so long as the procedures are consistent with existing Cambodian laws and have been developed in a process of meaningful public participation. More importantly, implementation of existing laws related to resettlement and compensation need to be improved before dams should be built on the Mekong mainstream. 7. Conclusion and recommendations In conclusion, there are two main issues that need to be addressed before dams on the mainstream Mekong can be properly assessed. First, there needs to be a precise and detailed plan of management of hydropower dams through the whole development cycle of identification, construction, operation and decommissioning. Second, the compliance and enforcement of existing laws and policies needs to improve. Until these both occur, hydropower dams should not be built on the mainstream Mekong. Samreth Law Group and MLAI recommend the following laws and procedures are in place before dams are built on the mainstream of the Mekong: a. more detailed
procedures of public participation and access to
information are developed that accommodate indigenous
and illiterate communities; Samreth Law Group is a public interest law firm registered with the Bar Association of the Kingdom of Cambodia. Samreth Law Group would be willing to assist relevant government authorities in the preparation of a more detailed legal framework without charging fees. 8. Contacts for Samreth Law Group and MLAI: Mr. Ping Ly Mr. Marty Berghoffen ____________ 1”Scoping
Study of Existing Frameworks Related to the World
Commission on Dams Strategic Framework – Cambodia”
by Sam Chamreoun, IUCN, p.4. |
Individuals
Date: 2-Aug-09
Subject: Ecology
I am very angry that China and other countries
are trying to destroy Mekong River by building hydroelectric
dams on the river. Especially China, building the most largest
dams of the world: the Manwan and the Dachaoshan. Everybody
please speak out your voices to help the river and the people
who lives by the benefit of the river. China is the most
cruel country in the world, we can not let them destroy
us by one way or another.
Date: 20-Oct-09
Subject: Trans-boundary impacts
Reduce dam construction in upstream of Mekong
river will help to reduce adverse impacts to downstream
countries and ecological systems. UPstream countries should
committ more to regional basin management and consider impacts
to downstream countries.
Date: 29-Nov-09
Subject: Trans-boundary impacts
would appreciate it if you could carefully
consider two reports that I have recently authored. Below
are the links to them.
| One deals with the Lower Sesan 2 dam in northeastern Cambodia, and regional impacts related to fisheries, and the other related to the Don Sahong Dam and regional impacts on fisheries. http://polisproject.org/PDFs/Baird%202009_Don%20Sahong.pdf http://www.ngoforum.org.kh/eng/envp/envpdoc/Hydro_BestPractices%20LowerSesan2reportEN.pdf Thank you for your consideration. Sincerely, Ian Baird, PhD
|
By: Le Quang Truong
Date: 17-Jul-09
Subject: Ecology
I think the governments of Thailand, Laos, Cambodia and Vietnam should unify and ask for supports from people around the world to put pressure on China, who are irresponsible and are carrying out bullish policies against the neighboring countries. If we ignore China's harshly and inhumanly actions, in future we may drink sea water and there won't be enough fish for growing population. Besides, Thailand, Laos and Cambodia should stop any plans on constructing hydro-power plants on the Mekong.
Ho Chi Minh City, July 17
Truong Le
By: Pham Dang Khoa
Date: 17-Jul-09
Subject: Multi sector impacts
Vietnam Eastern provinces
are the great destinations to travel. More than once time
visited there, I realized the Mekong streams are so important
to the people there. Their life are adhere to the water.
Every single daily activity is on the river. The dams and
hydropower plants built at the beginning of the river in
China is absolutely a big mistake. The water flow change,
everthing change! Stop destroying the Mekong river.
Date: 17-Jul-09
Subject: Trans-boundary impacts
Song Me cong thuoc ve tat ca cac nuoc ma no chay qua trong do khai thac phai di doi voi bao ve va doi hoi trach nhiem cua tat ca cac quoc gia vi loi ich chung cua khu vuc hanh dong nhu TrungQuoc la giet chet mot con song tuoi dep lam anh huong den cuoc song cua hang tram trieu dan song dua vao song phan doi hanh dong don phuong HAY HANH DONG CO TRACH NHIEM
Date: 21-Jul-09
Subject: Trans-boundary impacts
My most concern about these dams' construction
in the Upper Mekong River Mianstream is about river ecology
that has impacted on Mekong Catfish especially around Chiang
Khong riverside area.
| How can we have some impacts to stop these dam construction mainly influenced from Chinese Government that will get the most benefit out of these dams, not the Lower River Basin in Thailand, Laos, Cambodia and Vietnam. Regards, |
Date: 19-Nov-09
Subject: barrier dam at PhnomPenh=benefit for Cambodia and Viet-nam
Dear misters,
As a former hydraulic expert engineer of Alstom Power Hydro
[1] , I am interested by the dam projects
on the mekong river; the reading of some articles published
by the MRC Mekong Commission leads me to the three following
conclusions, I should like to share with you:
| A
- In the near future , all the dam projects on the
mainstream Low Mekong Basin will not be builded ;
the reason is that these low head projects require
new equipments responding to the suggestions in the
Mekong Commission guidance: fish migration, sediment
transport, ecologic operating... The development of
these equipments will take time ; however I am convinced
the objectives will be attained.
___________________ Title of Doctor Engineer obtained at
the University of Grenoble in 1970 From 1989 to 2007 Expert Engineer at
Alstom Power Hydro (which includes Neyrpic), Grenoble,
France. Graph of MekongDevelopment N°4 p.34 fig.2 shows a positive relationship between water level and fish catches. P.13 of Annual Mekong Flood report
2008 presents a graph (initiated by Halls and
als) showing a direct relationship between biomass
catches and the flood index FI(km2*days): when FI
decrease from 1 000 000( 2000's flood) to #400 000(dry
years 2003 or 2008) , biomass catches drop from 42
000 tons to #12 000 tons. The dam can be builded , using caisson
process already applied by Pr Truong Dinh Du
and als, without diverting the river . With modern power electronics, it is possible to adjust the rotational speed to the variable head and operate the turbines at their best efficiency , all year round, to produce hundreds of MW. We know that flow through axial turbine
increases with its rotational speed; the generator,
the turbine and the shaft , thank to very low head
and to modern power electronics, can be designed to
withstand rotational speed higher than runaway speed;
it will be very useful for mitigation of exceptional
flood . Dr Tô Van Truong and Tarek Ketelsen of Southern Institute of Water Resource Planning VN mention these major constraints of the natural conditions: flooding, shortage of fresh water which aggravates acide sulphate soils and salinity intrusion. According to community surveys undertaken by Oxfam (2006), not knowing what to do in droughts and insufficient water storage capacity were considered to be major limitations in drought-risk management. |
Date: 19-Nov-09
Subject: Multi sector impacts
Dear misters,
As a former Alstom Power Hydro Expert Engineer, I am interested
by the future of the Mekong basin. After having read some
documents downloaded from the site of MRCMekong Commission
, last October, I took advantage from a river cruise, from
Tonle Sap Lake to Saigon, to learn more on the Mekong river,
the Cambodian Great Lake and the Vietnamese "nine dragons
river delta".
| I arrive to the following conclusion: The dams builded or projected in the Mekong basin upstream of Phnom Penh will reduce the maximum water level at Phnom Penh Port; will consequently reduce the area of the Great Lake during the wet season. Mitigating this negative impact requires a barrier dam at the confluent of Tonle Sap river, Bassac river and Mekong river. The building of this barrier dam , based on caisson process, without diverting the river, will satisfy the MRC Commission guidance requirements about fish migration, water management, navigation.... Inside the caissons we can include special fish friendly bulb turbines producing , all year round , hundreds of MW. Maintaining the Great Lake area and giving hydro power , the barrier dam is benificial to Cambodia. It will be also benificial to Viet Nam thank to fresh water delivered in a quantity larger than the present level during the dry season. More details of this proposal can be found in the e-mail I already sent to the address :hydropower@mrcmekong.org under the subject: barrier dam at Phnom Penh=benefit for Cambodia and Vietnam Best regards, |
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