A few weeks ago, Cook and I observed a consultation between Sor Rattanamanee Polkla, a Thai lawyer, and representatives from 8 communities (Chiang Rai, Loei, Nongkhai, Buangkarn, Nakonpanom, Mookdaharn, Aumnatcharoen and Ubon Rachthani), to discuss next steps in their fight against the controversial Xayaburi dam in Lao PDR. Last August, on behalf of the 8 communities, Sor filed a case in the Administrative Court of Thailand challenging the validity of the power purchase agreement between the Electricity Generating Authority of Thailand (EGAT), the buyer, and the Xayaburi Power Company Limited, the operator. The power purchase agreement is driving the construction of the Xayaburi dam, which, if completed, will very likely impact and threaten the livelihoods of these downstream communities.
Sor has extensive experience working closely with communities in advocating for their rights. As Cook previously wrote, in conducting several community consultations during the course of this case, Sor is trying to use the Mekong River Commission’s Procedures for Notification Prior Consultation and Agreement (PNPCA), procedures that the National Energy Policy Council, Thai Cabinet, and EGAT shirked when signing and approving the power purchase agreement.
A Bump in the Road
Disappointingly, the Administrative Court of Thailand recently denied jurisdiction to hear the communities’ case, prompting this most recent urgent community consultation. The administrative court based its decision on three grounds:
- 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;
- 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
- 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.
Nevertheless, this is not the . . .