In late-September 2010, the MRC received the official submission for a proposed mainstream hydropower development project from the Government of Lao PDR. Although preliminary information on the project has been shared among MRC Member Countries before, this submission, for the first time, triggered the MRC’s Procedures for Notification, Prior Consultation and Agreement (PNPCA) process.
According to the 1995 Mekong Agreement, which established the MRC, Member Countries must hold prior consultations in order to discuss the trans-boundary impacts mainstream Mekong development may have on neighboring countries, before any commitment is made to proceed. The consultation process aims to prevent adverse impacts on riverine communities and the environment downstream.
Prior to the Xayaburi proposal, hydropower projects have only been constructed on the Mekong's tributaries, not on the mainstream. The difference between the tributary and mainstream development is that proposed projects on the tributaries only need to notify other MRC Member Countries, while mainstream development, considered to have potential for more trans-boundary impacts, requires prior consultation so that member countries can rigorously review the project with an aim to reach an agreement on whether or not to proceed with the proposal, and if so, under what conditions.
All mainstream development proposals are required to undergo the prior consultation process and aim to come to a unified agreement on how to proceed. Diversion projects, for example, diverting water from the mainstream Mekong will also require a prior consultation and an agreement among MRC Member Countries if the diversion involves using Mekong water in another basin.
The prior consultation process under PNPCA is a requirement of the 1995 Mekong Agreement for countries to jointly review any development project proposed for the mainstream, with an aim to reach a consensus on whether or not it should proceed, and if so, under what conditions.
The greater purpose of the PNPCA process is for countries proposing mainstream development to perform due diligence before a project proceeds. Trans-boundary impacts from mainstream projects are considered to have greater impacts than those on the tributaries; hence more rigorous consultation and a unified consensus among the four Member Countries is required.
SUBMISSION: The process officially begins when the MRC receives the submission from the relevant government agency of the country proposing the mainstream development through the country's National Mekong Committee. After a check on compliance with documentation requirements, the MRC Secretariat then forwards the submission to the other three Member Countries through their Joint Committee (JC) Members.
EVALUATION: Once the submission is received by all Member Countries, a process of technical review will start, coordinated by the MRC Secretariat. They will collectively consult on the proposed mainstream development and request further information, as needed. The review will determine compliance with MRC procedures on flow regime and key environmental and social impact areas including the extent to which any trans-boundary impacts have been adequately addressed.
REACHING AGREEMENTS: After consulting, the aim is to reach a common agreement among the MRC JC Members on how to proceed. The MRC's goal is to assist Member Countries in finding sustainable solutions for the river and its peoples during this process.
The PNPCA process officially begins on the day the last Joint Committee Member receives the submission from the MRC Secretariat. From this point to the final decision, the consultation process should take 6 months, but can be extended if necessary.
The Joint Committee members will delegate up to four representatives from their respective countries to assist with the PNPCA process as part of a Working Group. The MRC Secretariat will also select one representative from each core programme to participate in their internal Task Group on the PNPCA.
The MRC’s role is to advise on the project proposal’s risks and opportunities and to facilitate common views for basin development that minimise any adverse impacts and scope for conflict.
Since 1995, the MRC has been an intergovernmental advisory body. The relevant government agency planning any mainstream development contacts the MRC through their respective Joint Committee Member, and thereafter the MRC works with its Member Countries towards a unified decision on how to proceed.
During the evaluation process, JC members will consider if the proposed mainstream infrastructure development,
A technical review against preliminary design guidance already approved by the Joint Committee will be undertaken by the MRC Secretariat.
Through a number of mechanisms including the MRC's basin planning programme, the Strategic Environmental Assessment and a web-based submissions process that has been operating for more than a year, public perspectives are considered in the prior consultation evaluation process.
In general, the MRC sees public participation and consultation as a central component to its commitments. For example, the MRC Strategy (2007-2011) states that enhanced stakeholder participation and consultation is essential for effective basin management. Additionally, Member Countries have demonstrated their commitment to stakeholder involvement through the support and implementation of the MRC Integrated Water Resources Management-based basin strategy and principles.
Therefore, whereas decisions on how to proceed with mainstream Mekong hydropower development is that of the Joint Committee, the views of impacted communities will be represented through previously conducted impact assessments, such as the SEA and the BDP process . If the MRC Joint Committee concludes that further information on the views of riverine communities is needed, or if the extent of the impacts on the communities is not fully understood, they may request additional consultations and research to be conducted.
If necessary, the MRC Joint Committee may extend the process until a consensus is reached. If this is still not possible, the views are recorded and the notifying country will take these into consideration when coming to its final decision on the project. If it decides to proceed, then special consideration would be required by the MRC provisions of the Agreement related to causing of possible harm from the proposed use.
If one Member Country feels that procedures are being violated, there is a process under the Agreement that helps resolve disputes, if they occur. The Joint Committee and the MRC Council are charged with addressing and resolving disputes referred to them by fellow Council members, fellow Joint Committee members or Member Countries.
If the Joint Committee or the Council is unable to resolve the difference or dispute within a timely manner, the issue is then referred to the governments of Member Countries to resolve by negotiation through diplomatic channels. Any dispute can, by mutual agreement, also be referred to a third party for mediation.
The Strategic Environmental Assessment is not a formal part of the PNPCA process, but provides an input to it. The twelve proposals for mainstream hydropower development prompted the MRC's commissioning of the Strategic Environmental Assessment in early 2009. Whereas the PNPCA process is an agreed intergovernmental process that assesses each mainstream project individually, the SEA holistically weighs the risks against the opportunities for the complete scenarios of mainstream developments, thereby allowing an assessment of cumulative impacts. The SEA's trans-boundary approach offers regional perspectives valuable to the PNPCA process.
The MRC applies standards following the principles of the 1995 Mekong Agreement that focus on maximising mutual benefits, promoting sustainability and preserving vital ecosystems. The MRC has translated these standards into other procedures, such as the Procedures for Maintenance of Flows on the Mainstream (PMFM), the Procedures for Water Quality (PWQ) and the Preliminary Design Guidance for Proposed Mainstream Dams in the Lower Mekong Basin. These procedures provide Member Countries and developers with indications of the standards that will be taken into account during the PNPCA evaluation process. MRC has also recently approved preliminary design guidance on five key areas - fisheries migration, water quality, sediment management, freedom of navigation and dam safety.
The responsibility for triggering the PNPCA process rests with the member country proposing the project. Once notified, MRC has to respond under the terms of the Mekong Agreement. Many people have argued that the process should take place as early as possible in the planning cycle to provide feedback to the developer on what are the key issues that MRC Member Countries consider important. If it is left late in the planning process, there is a concern that the room for making adjustments may reduce.
MRC Member Countries have recognised the need to take the PNPCA seriously. In 1995, the four Member Countries signed the Mekong Agreement, which requires the PNPCA process to be triggered in the event of major mainstream Mekong development. Since then, guidelines have been prepared to govern its detailed implementation. It is important to note that any mainstream development is likely to impact all Member Countries along the Mekong, and therefore a collaborative decision on how to proceed is needed.
The four Heads of Government recommitted to full cooperation in implementing the 1995 Mekong Agreement when they met for the first MRC Summit in April 2010.
As each hydropower project submits their proposal to the MRC individually, the submissions are therefore also assessed by the Joint Committee one-by-one, but within the framework of the overall cumulative picture provided by the SEA and BDP. When the Member Countries arrive at their final decision on how to proceed with one mainstream proposal, if they decide to proceed with the development, such decisions would only be applied to that specific project. In the event that future hydropower projects submit to the MRC for the prior consultation process, it will then be assessed based on its own proposal against its risks, opportunities and socio-economic and environmental impacts it may have on the Mekong and its people.