1. What is the MRC’s prior consultation process?

Prior consultation is one of three processes of the Procedure for Notification, Prior Consultation and Agreement (PNPCA). The Prior Consultation is a process for the MRC Member Countries to discuss and evaluate benefits and associated risks of any proposed water-use project which may have significant impacts on the Mekong River mainstream’s flow regimes, water quality and other environmental and socio-economic conditions.

Any Member Country that intends to proceed with the project (notifying country) is required to notify the other countries and provide them with available data and information. The process enables the notified countries to assess possible impacts on their territories and comment on the proposed use.

The process aims for the Joint Committee (JC) to reach an agreement to achieve an optimum use and prevention of waste of water, and to issue a decision that contains agreed upon conditions for the project.

The prior consultation is not about approving the proposed water use, rather it is designed for the notified countries to make recommendations and for proposing country to accept certain measures, to mitigate any potential impact and to find a better way to share the benefits.

This is because, as specified by the PNPCA, the prior consultation is neither a right to veto the proposed use nor a unilateral right to use water by any Member Country without taking into account the others’ rights.

2. Do the other three notified countries have the right to veto or oppose the project? No.
The 1995 Mekong Agreement clearly states that the prior consultation process is neither a right of any country to veto a project nor is it a right of any country to proceed with a proposed use of the river without taking into account the other riparian countries’ rights and concerns.

3. Isn’t the prior consultation the approval process needed for a proposed project? No.
The prior consultation is not a process to seek approval from all the Member Countries for the project. It provides an opportunity for the notified countries to review the project and raise their legitimate concerns on adverse transboundary impacts on the environment and their people, if any. It also allows the country proposing the project to better understand such concerns and to identify measures to address the concerns.

As part of the efforts to address the concerns raised by the other Member Countries during the prior consultation for the Xayaburi Hydropower Project, the Lao government has committed to improve and modify the project’s design to avoid, minimise and mitigate possible impacts. The Lao Government and the developer invested additional USD 400 million to revise its dam’s design to address the issues of fish migration and sediment, two of the main concerns raised during the prior consultation.

4. Does the 1995 Agreement specify the types of projects that should undergo this process? Yes.
The Mekong Agreement and the Procedures for Notification, Prior Consultation and Agreement (PNPCA) specify the types of projects based on geographic locations and how water resources in the Lower Mekong Basin will be used at particular seasons in the year.

The run-of river project located in the Mekong mainstream is required to go through the PNPCA process. In addition, the Agreement and the PNPCA calls for prior consultation if these projects may have significant impacts on the Mekong mainstream’s flow regimes and water quality which are transboundary in nature.

Moreover, three types of water-use or diversion projects that must undergo the prior consultation including (1) any mainstream project using water within the Lower Mekong Basin during the dry season, (2) any project diverting water from the Mekong mainstream to any other basin during the wet season; and (3) any project diverting the surplus quantity of water to any other river basin during the dry season.

5. How long does the prior consultation take?
The process should take six months. If the Joint Committee requires more time for discussion, the prior consultation can be extended.

6. What will happen during the prior consultation process?
The prior consultation starts when all members of the JC receive the notification with the project document. In the next six months, the JC reviews technical aspects of the project to determine compliance with the MRC procedures on flow regime and water quality, assesses any possible impact on environment and livelihoods, and suggests measures to address those concerns before concluding the process. In the case of Pak Beng hydropower project, the prior consultation process starts officially on 20 December 2016.

The review will determine compliance with the MRC’s Preliminary Design Guidance for Proposed Mainstream Dams in the Lower Mekong Basin.

Even though public involvement is not a requirement of the process, the Member Countries have agreed to the importance of stakeholder participation. At the national level, national information sharing/stakeholder consultation meetings will be held appropriately and according to national mechanisms and practices in the respective countries.

At regional level, regional information sharing/stakeholder consultation meeting will also be held. Field visits to the project may also take place if needed.

The technical review report, which may include findings from the national information sharing/stakeholder consultation meetings, will be presented to the MRC Joint Committee.

After that, the notified countries will submit their official reply forms to the MRC Secretariat to have their comments on record.

The final stage is for the Joint Committee to hold a meeting to discuss the project prior consultation with an aim to reach an agreement to achieve an optimum use and prevention of waste of water, and to issue a decision that contains agreed-upon conditions for the project.

7. Can such conditions be adapted later on during the project’s construction or operation? Could there be any additional conditions imposed later on?
Such conditions may be contemplated even after the prior consultation process has been completed because the 1995 Mekong Agreement defines ‘agreement’ on conditions to be made under the prior consultation process, as a dynamic and practical consensus.

8. What could any other Member Country do if it finds out later on that the environment in its territories has been significantly affected by the project?
The Mekong Agreement provides a framework for prevention and cessation of harmful effects. The country encountering such impact should notify the MRC of the incident with valid evidence and the country causing that impact would need to immediately cease the alleged cause of harm until that cause is determined. The Mekong Agreement also specifies state responsibility for damages once determined by the concerned parties, in conformity with the principles of international law.

9. Is it mandatory for the Member Countries to reach a conclusion on the prior consultation for a proposed project? No.
It is not mandatory for the JC to reach an agreement before implementing the proposed use. The PNPCA states that the JC should aim to arrive at an agreement. If the Member Countries cannot reach a conclusion, their views will become part of the record of the proposed use for future reference. The final decision to proceed or desist with the project rests with the country proposing it.

10. What happens if the Member Countries cannot reach a conclusion on the prior consultation process or agree on conditions to achieve an optimum use or prevention of waste of water?
If the MRC Joint Committee cannot reach a conclusion of the prior consultation process or an agreement, they may refer the matter to the higher MRC governance body, the MRC Council, which consists of water and environment ministers from the four Member Countries. If the Council cannot decide on the issue it may refer it to the governments of the four countries to seek resolution through diplomatic channels. Should the governments find it necessary, by mutual agreement, they may request for mediation and proceed according to the principles of international law.

11. Why does the MRC need the prior consultation? What are the benefits of the process?
Proposed water-use projects that call for the prior consultation are more likely to have significant impacts on the environment and people and, therefore, should afford the other countries the opportunity to evaluate and comment on them.

The prior consultation process aims to prevent adverse transboundary impacts on riverine communities and the environment upstream and downstream. It also intends to achieve the optimum use and prevent waste of water.

The MRC so far experienced two prior consultation cases – Xayaburi and Don Sahong hydropower projects, both of which are in the Mekong mainstream in Lao PDR. In the two cases, neither of them reached an agreement at the JC level and were referred to the MRC Council, the organization’s highest body with the ministers from the four countries. The Council was also unable to reach a unanimous conclusion on the cases. As a result, the case has been referred to the concerned governments to resolve through normal diplomatic channels.

For Xayaburi, however, the process has prompted the Lao government and the developer to conduct its own environmental impact assessment and to invest additional $400 million to revise its dam’s design to address the issues of fish migration and sediment, two of the main concerns raised during the prior consultation.

Without prior consultation process, there is no information sharing and consultation from projects of sovereign countries like Xaiyaburi, Don Sahong, and Pak Beng. Without prior consultation, there is no improvement to Xaiyaburi. This prior consultation process pushes for conduction of scientific assessments and facilitation of negotiations. It keeps balance the interests of four member countries.

12. Who will be involved in the prior consultation process?
The prior consultation is undertaken by the MRC Joint Committee, a body comprising one high-level government official from each Member Country, and supported by the MRC Secretariat in its technical and administrative functions. Each National Mekong Committee provides national administrative and coordinating functions, and supports the JC in the implementation of related activities.

A Joint Committee Working Group (JCWG) acts as an advisory body to assist the Joint Committee during implementation of the PNPCA. The JCWG with the support of the MRC Secretariat will review aspects such as dam safety, fish migration, sediment flow, navigation and environmental and socio-economic impacts.

Civil society and members of the public will be engaged by the respective National Mekong Committee in each country.

At regional level, there will be 2 regional stakeholder consultations for the Pak Beng hydropower project.

13. What is the role of the MRC Secretariat in the process?
The MRC Secretariat will assist the member countries to assess technical aspects of the project and facilitate the meetings of the Joint Committee.

The MRC Secretariat together with the National Mekong Committee will facilitate national and regional stakeholder consultations to solicit views and concerns of different stakeholders and other interested parties on the case to proposing country for their consideration. The MRC Secretariat will facilitate consultations with stakeholders in good faith and systematically document their views and demonstrate how those views will be considered by the MRC governance bodies and provide feedback on them.

After the prior consultation is completed, the Secretariat can continue to offer technical input to the project, if needed.

14. What issues will be considered during the technical review of the project’s submitted documents?
The technical review looks at the overall concept of the proposed project according to the submitted feasibility study and the Environmental Impact Assessment. It will evaluate the project against the MRC Preliminary Design Guidance (PDG) and will identify gaps and revisions if needed. The PDG provides direction on performance targets, design and operating principles for mitigation measures, as well as compliance monitoring and adaptive management. It will also address particular issues as decided by the Joint Committee Working Group.

15. How organisations or stakeholder groups will be engaged at stakeholder consultations or information sharing meetings?
Responsibility for holding in-country consultations or information sharing meetings rests with the respective government agencies. The National Mekong Committee, a government coordination body of each of the Member Countries, is in charge of planning such sessions in that country, with technical support from the MRC Secretariat.

Taking lesson learnt from two previous cases of Xayaburi and Don Sahong, the MRC Secretariat has started to engage concerned stakeholders from early stage in the process. Information has also been widely and transparently shared on MRC website. The MRC Secretariat also concerns about necessary of enough time given to the public for reviewing project documents, therefore project documents have been published on MRC website right after receiving consensus agreement at the 1st JCWG meeting.

The other relevant documents will be shared timely in the process, including overview of key features of the submitted documents, presentations and facts sheet of the proposed project.

There will be two stakeholder consultation meetings at regional level and a number of information sharing and stakeholder consultations for affected communities at country level. In order to facilitate for broader stakeholder participation, participants from all sectors are welcome including NGOs, CBOs, research institutes, academia, developers, media and others.

The MRC will provide financial support for participants from highly relevant organizations if they face financial predicament.

The MRC is working on its participatory approach through collaboration, public participation and community engagement in the implementation. During the prior consultation process for the proposed Pak Beng Hydro-power Project, the MRC provides a channel for receiving, documenting and transmitting all legitimate concerns and views from interested stakeholders. In addition to other forms of communication and engagement, we welcome comments and feedback from the public through our active comment box.

16. Are there representatives of civil society in the Joint Committee Working Group (JCWG)?
There is no representation of civil society in the JCWG, which is an advisory body and was formed to guide the MRC Secretariat in facilitating the process and to discuss emerging issues. The JCWG’s function is to assist the MRC’s Joint Committee in implementing the PNPCA and provide necessary guidance to the MRC Secretariat in relation to those notified projects that call for prior consultation or agreement according to the principles and steps set out in the 1995 Mekong Agreement. Its formation is provided for in the MRC Procedures. Membership comprises four representatives from each of the four lower Mekong countries with the MRC Secretariat providing technical and administrative input to them.

17. How will the MRC use collective perspectives of stakeholder groups for the prior consultation process?
Stakeholders’ input, views and comments will be reflected in a stakeholder consultations report that will be considered during the evaluation of the project.

Findings and recommendations from regional information sharing report together with national information sharing report will be documented in the Technical Review Report (TRR) and presented to the MRC governance bodies for consideration during negotiation on conditions for the project.

18. How much information about the project will be made available to stakeholder groups and the public?

The MRC has already made available the submitted project documents on its website, which is accessible to the public. These are: transboundary environmental and social impact assessment and cumulative impact assessment, environmental impact assessment, environmental management and monitoring plan, social impact assessment, social management and monitoring plan and resettlement action plan. The engineering status report and drawings are also available on the webpage.

Ongoing and future documents related to the prior consultation will also be made available on the website. These include the MRC technical review of the project’s documents, stakeholder consultation report, and official reply forms submitted by the three notified countries.

19. Could construction begin during the prior consultation?
Under the PNPCA, the notifying country must not implement the proposed water-use without providing the opportunity for the other countries to discuss and evaluate the project.

20. Could the outcome of prior consultation for any project set a precedent for future projects that will be submitted for the same process?
The prior consultation process is conducted on a case-by-case basis for each proposed mainstream development project. If a future project of this kind is submitted to the MRC for prior consultation, the outcome of any previous consultation will not affect the newly proposed project. However, information and knowledge gathered during any previous prior consultations may be useful to future projects and can be used as part of baseline information for evaluation.

In 2016, MRC reviewed the implementation of the PNPCA adopted under the 1995 Mekong Agreement and documented some key lessons learnt for reference. Those key lesson learnt are (1) greater clarity regarding the commencement and conclusion of the Prior Consultation process; (2) a process for the review and approval of the adequacy of documentation received for Prior Consultation; (3) greater clarity regarding the roles of all actors who have a responsibility for implementing the PNPCA; (4) development of appropriate project information disclosure practices to effective stakeholder participation; (5) greater clarity regarding the role of transboundary EIA; (6) development of a “Commentary” on the provisions of the PNPCA, to supplement the current Guidelines on Implementation of the Procedures for Notification, Prior Consultation and Agreement by placing the key provisions of the PNPCA in the wider context of international best practice in the field.

The prior consultation process for Pak Beng hydropower project has taken those lessons learnt into consideration during its implementation.

21.  How will prior consultation for proposed Pak Beng be different with other previous prior consultations for Xayaburi and Don Sahong?

i. Early sharing of all submitted project documents on MRC website

ii. No dis-agreement on starting date

iii. Early stakeholder engagement and consultation

iv. Two regional stakeholder events during the 6 month period

v. Engagement of project developer both to be present at forums but also through bilateral meetings with MRCS

vi. Aiming to agree on the conditions for the project when it goes ahead.

vii. Post-consultation roadmap and plan beyond the 6 month period such as an action plan to follow up to, and subsequent communication and sharing of info with stakeholders through website, forums, meetings

22. How does the ongoing Council Study (Study on sustainable management and development of the Mekong river including impacts of mainstream hydropower projects) contribute to the prior consultation process?
The main objective of the Council Study is to further enhance the ability of the MRC to advise member countries on the positive and negative impacts of water resources development on people, economies and the environment of the Mekong River Basin, with focus on improving the understanding of the sustainable development of the Mekong River.

Council study could play an important role as a knowledge, information, data and assessment tools hub to support any impact assessment work for the prior consultation process of the mainstream development project.

Council Study’s scope of work covers all water-related sectors such as irrigation, agriculture land use, fisheries, navigation, domestic and industrial water use and hydropower which focusing on the mainstream development projects. The study also takes into account other important disciplines such as hydrology and related issues, biodiversity, environment, socio-economics, macroeconomics and climate change. In addition, transboundary impact assessment employs a full range of indicators for the above sectors and disciplines.

23. Is trans-boundary impact assessment a requirement of the prior consultation process? How is trans-boundary impacts of the project viewed and used?
According to the PNPCA, the conduction of the trans-boundary impact assessment, either socio-economic or environmental, is not mandatory since none of provision obliges the notifying country to do such assessment. However, it is essential for the notifying country to provide such assessment information in order to enable the notified countries as well as the MRC Secretariat to evaluate and discuss about the measures to minimize and mitigate the potential trans-boundary impacts.

24.  What is the purpose of the Regional Stakeholder Forum on 22-23 February in Luang Prabang? Regional Stakeholder Forum is an opportunity for MRC stakeholder groups to get together and discuss common interested issues.

The forum is one step of MRC stakeholder engagement process. Along prior consultation process of the Pak Beng hydropower project, there will be two regional stakeholder fora, in addition to number of information sharing and stakeholder consultations for affected communities at country level. This first regional stakeholder forum is to:

The MRC provides a channel through MRC comment box for receiving, documenting and transmitting all legitimate concerns and views from interested stakeholders on the proposed Pak Beng Hydropower Project. The legitimate comments will be also addressed at regional stakeholder forums. In addition, they will be considered, together with key messages and recommendations from the stakeholder consultation sessions at the national and regional levels, to be documented in the Technical Review Report (TRR).

Participants will have opportunity to share their views and opinions on the project both in terms of technical aspects as well as its socio-economic impacts. In support of the discussion, the MRC Secretariat and Lao Government will provide participants an overview of MRC prior consultation process and its lessons learnt, followed by introduction on Lao sustainable hydropower strategy and Pak Beng project, and briefing on approach, scope and methodology for MRCS technical review of the Pak Beng Hydropower Project regarding transboundary issues.

25.  What will be the discussion on the proposed Pak Beng Hydropower Project?
The MRC provides a channel through MRC comment box for receiving, documenting and transmitting all legitimate concerns and views from interested stakeholders on the proposed Pak Beng Hydropower Project. The legitimate comments will be also addressed at regional stakeholder forums. In addition, they will be considered, together with key messages and recommendations from the stakeholder consultation sessions at the national and regional levels, to be documented in the Technical Review Report (TRR).

i. share information on the progress and expected outputs of the two key works of the MRC: the Council Study and the Pak Beng prior consultation process;

ii. jointly review and provide comments and recommendations on the design of the council study assessment method, tools and indicators;

iii. share information, exchange and document views on the proposed Pak Beng hydropower project and importance of stakeholder engagement during the process and beyond.