What is the MRC’s prior consultation process?

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 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 also aims for the 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 provides the opportunity for the country proposing the project to listen to the concerns raised by the other Member Countries and, based on this, consider measures to address such concerns.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.

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. In addition, the Agreement and the PNPCA calls for prior consulta-tion if these projects may have significant impacts on the Mekong mainstream’s flow regimes and water quality which are transboundary in nature.

Both documents specify three types of water-use or diversion projects that must undergo the prior consultation. The first one is any mainstream project using water within the Lower Mekong Basin during the dry season. The second is any project diverting water from the Mekong mainstream to any other basin during the wet season; and the third is any project diverting the surplus quantity of water to any other river basin during the dry season.

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.

How long does the prior consultation take?

The process should take six months, but can be extended by the MRC Joint Committee.

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 at no less than Head of Department level 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 PNPCA Joint Committee Working Group (PNPCA JCWG) acts as an advisory body to assist the Joint Committee in implementing the PNPCA and provide necessary guidance to the MRC Secretariat. The MRC Secretariat will assign staff from its programmes to participate in an internal task group on the PNPCA to provide input to a technical review of the submitted project documents.

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

What will happen during the prior consultation process?

Once the Member Countries receive the prior consultation submission, the MRC Secretariat coordinates a technical review of the project’s submitted documents. 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 public participation, and national public consultations or information sharing meetings will be held appropriately and according to national mechanisms and practices in the respective countries. Regional public consultations will also be held. During this time, the Joint Committee may hold a meeting to discuss the process. Field visits to the project may also take place if needed.

The technical review report, which may include findings from the national public participation 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.

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.

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.

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 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.

For example, 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. Lao PDR has started to share available information on the modifications with the MRC Secretariat to receive input and expert advice. This information can be shared with the other Member Countries.

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 compli-ance monitoring and adaptive management.

It will also address particular issues as decided by the PNPCA Joint Committee Working Group.

What is the role of the MRC Secretariat in the process?

The Secretariat’s role is to advise on the project’s risks and opportunities and to facilitate common views on conditions to achieve an optimum use and prevention of waste of water.

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

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.

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.

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.

What could any other Member Country do if it finds out later on that the envi-ronment in its territories has been significantly affected by the project?

The Mekong Agreement provides a framework for prevention and cessation of harmful effects. Firstly, 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.

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.

Public Participation and Access to Project Information

Does the prior consultation for the Don Sahong Hydropower Project include the views of the public and particularly the affected riverine communities?

In general, the MRC sees public participation and consultation as one of its central components. For example, the 2011-2015 Strategic Plan defines public participation, stakeholder arrangements and transparency as core principles shared by the Member Countries. It states that transparent basin-wide dialogue together with intensified and structured public participation is needed to realise the full benefits of integrated water resource management (IWRM) and effective Basin management.

Even though public participation is not a requirement of the prior consultation, the Member Countries have realised its importance as additional input to the process. In the case of the Don Sahong Project’s prior consultation, the three notified countries will conduct public participation activities through their respective National Mekong Committees, a body that coordinates MRC matters in each Member Country. Members of the public, including civil society, can also submit their views, petitions and comments on the project during the process to the MRC, including via its website, wwww.mrcmekong.org, and the MRC will ensure that these will be presented to the Joint Committee.

Views and comments reflected in previous and ongoing stakeholder participation mechanisms will also be considered during the evaluation.

The aim is for the Joint Committee members to be informed of public opinion and concerns raised both in their own country and in other neighbouring countries on a proposed project and then use this information as part of their consideration.

Which organisations or stakeholder groups will be engaged at such national public consultations or information sharing meetings? How will the activities be held?

Responsibility for holding incountry 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.

Are there representatives of civil society in the PNPCA Joint Committee Working Group (JCWG)?

There is no representation of civil society in the PNPCA JCWG, which is an advisory body and was formed to guide the Secretariat in facilitating the process and discuss emerging issues. The PNPCA 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.

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.

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: 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 consultations report, the official reply forms submitted by the three notified countries.

These documents and other updates are available on the Dong Sahong Related section at the top of this page. 

The project developer also makes available relevant data and information, and provides updates on the project on its website http://dshpp.com.

Difference between Notification and Prior Consultation

What is Notification?

A requirement in the 1995 Mekong Agreement signed by Cambodia, Lao PDR, Thailand and Viet Nam, the Notification process is a prerequisite for the development of any proposed project within the Lower Mekong Basin that will use water on a year-round basis in a tributary or in the Mekong mainstream during the wet season. It is also required for projects diverting water from the Mekong’s tributaries to any other river basin. In addition, these types of projects will call for the notification process if they are considered as having possible significant impacts on the Mekong River’s flow regimes and water quality.

The process requires a notification to the MRC and submission of relevant project information to enable the notified Member Countries to foresee the project’s water use and any significant impact that might stem from this.

Lao PDR submitted the project for the Notification purpose in late September 2013. Why did the country opt for this process?

Lao PDR initially informed the other Member Countries that Notification was the appropriate process to inform them about the project, because they said it was neither a tributary nor mainstream dam. It also said the project would use only 15% of the Mekong flows and thus would not have significant impacts.

The Mekong Agreement and the PNPCA do not offer a mechanism for the MRC Member Countries to formally inform one another of proposed uses for which they foresee no significant impacts, but for which they believe some discussion may be necessary.

What were the responses from the notified countries on the notification?

Concerned over potential effects of the project, mainly on fisheries, sedimentation and flow regimes, the notified countries responded that it should undergo another more extensive mechanism of the PNPCA, the Prior Consultation process, to allow more discussion and evaluation among the countries and other concerned stake-holders.

Why did Lao PDR change its position and submit the project for prior consultation?

Lao PDR submitted the project for the prior consultation to acknowledge concerns of the other Member Countries and to formalise the exchange of ideas, as well as to work openly and in close cooperation with the other Member Countries and the MRC Development Partners (donor governments, regional and international organisations).

Has the MRC previously carried out the prior consultation process for any other projects?

Yes.The MRC conducted the prior consultation for the Xayaburi Hydropower Project as submitted by Lao PDR. The Lao government submitted the project in late September 2010. It was the first time that the MRC undertook the prior consultation under the PNPCA.

What was the decision of the MRC in the case of the Don Sahong Hydropower Project?

In January 2015, the members of the Joint Committee (JC) could not reach an agreement on what conditions could be applied to the construction and operation of the dam that would address the concerns of the notified countries. Therefore, they decided to refer the matter for guidance to the higher MRC governance body, the MRC Council. After further deliberations, the MRC Council announced in June 2015 that there are still differing views among the countries on whether the prior consultation process should come to an end, and that the matter must now be referred to their respective governments for resolution.

Article 35 of the 1995 Mekong Agreement stipulates that in the event that the Commission is unable to resolve a difference or dispute, the issue shall be referred to the governments “to take cognizance of the matter for resolution by negotiation through their diplomatic channels …” If they find it necessary or beneficial, the governments can resort to mediation by mutual agreement according to the principles of international law.

When did the MRC Council meet and how did the members deliberate?

The Council Members deliberated via written communication.

Did the Member Countries change their positions stated in the January Special Session of the JC?

The Member Countries reiterated their original positions from January 2015. The original reply letters can be found on our website.

Which bodies at the governmental level are now responsible for handling the issue?

As stated in the 1995 Mekong Agreement, “the issue shall be referred to the Governments to take cognizance of the matter for resolution by negotiation through diplomatic channels …” This means that each country’s Prime Minister’s cabinet, Ministry of Foreign Affairs, or other national agencies can communicate with their counterparts as they choose or see fit.

Is the MRC shying away from its responsibility by referring the matter to the governmental level?
The MRC is acting according to its mandate and the rules provided in the 1995 Mekong Agreement, the Procedures for Notification, Prior Consultation, and Agreement (PNCPA), and other set of procedures and guidelines. The MRC has followed the steps provided under the PNPCA to address the concerns of all the parties involved. The process succeeded in bringing the parties to the table to discuss the matter, and in facilitating that dialogue, which is part of the mandate of the MRC. The Member Countries could not reach a conclusion and therefore, following the established framework of cooperation under the 1995 Mekong Agreement, they proceeded with the next step, which is to take the matter to the governmental level for resolution.

Is Laos ignoring the concerns of the other Lower Mekong countries by going ahead with the construction of the Don Sahong Hydropower Project?

In the case of the Don Sahong Hydropower Project, the Member Countries have gone through the established technical channels of the MRC and the Secretariat to discuss their concerns. Therefore, within the context of the PNPCA and of the mandate of the MRC, Lao PDR has had the opportunity to listen to the other Member Countries’ concerns. The Joint Committee could not agree on which conditions could be applied to the construction and operation of the dam that would address the concerns of the notified countries, and decided to refer the matter to the MRC Council. The Council decided that the matter had to be taken to the governmental level. Agreement in this case, does not mean a decision to go ahead or cancel the project. The prior consultation is not a process to seek approval from all the Member Countries. The decision to proceed or desist rests with the country proposing it, in this case Lao PDR, which has stated that they will continue to cooperate with the MRC and that they are committed to ensuring the sustainable development of the project.

When was the last MRC inspection of the construction site of the Don Sahong Hydropower project?

The MRC is not a regulatory body therefore its mandate is not to oversee or inspect national projects of its Member Countries. The mandate of the MRC is to play an advisory role and provide technical assistance to help its members make informed decisions about their development. The MRC was established as a knowledge and analysis-based organisation to promote and coordinate the sustainable development of the Mekong River. It was not established as a mechanism for arbitration and it does not have regulatory authority.

Has the government of Lao PDR signed the concession and procurement agreements with the developer?

The MRC is not involved in the contractual processes between the developer and Lao PDR. Therefore, any questions related to this would need to be addressed directly to the Lao government.

Did the MRC explore alternative options during the Prior Consultation processes for the Xayaburi and Don Sahong Projects?

Under the Procedures for Notification, Prior Consultation and Agreement (PNPCA), the MRC mandate is to facilitate and support the process focusing on the submitted projects and their related documents. This means that the MRC focuses on assessing the potential impacts of the proposed projects and in providing technical recommendations to minimise those impacts, and not in exploring other options. However, for the Don Sahong Hydropower Project, we learnt of some alternative options that have been studied – such as Thako, Hou Xang Pheuk, and Tad Somphamit around the proposed areas – but the MRC has not conducted a detailed review or study on these alternatives. Also, Lao PDR stated they are not economically feasible.

Have the MRC ongoing structural reforms compromised the prior consultation of the Don Sahong Hydropower Project or made it more challenging?

No. Some of the work of the structural reform had been going on for some time and the prior consultation for the Don Sahong project took place under the leadership of the current members of the Joint Committee and the MRC Council, and through the channels stipulated in the 1995 Mekong Agreement. The MRC followed every step of the consultation as stipulated in the Procedures for Notification, Prior Consultation, and Agreement (PNPCA), therefore the process was not compromised by any of the ongoing reforms.

============