Residents of Ban Ka Ber Din, et al. v. Office of Natural Resources and Environmental Policy and Planning, et al.

In 1999, coal-mining company 99 Thuvanon, Co., Ltd. (defendant) applied for coal concession certificates to conduct its open-pit operations in Ban Ka Ber Din, a region located in Chiang Mai’s Om Koy District. It took another twelve years for the project’s Executive Committee (defendant) to review and approve the Environmental Impact Assessment (EIA) on which the project’s concession certificate depended and until 2019 for authorities in Chiang Mai to release notice of the mine’s concession application. Shortly thereafter, community representatives (plaintiffs) submitted a petition demanding a review of the EIA’s approval. 

When their protests went unheeded, fifty plaintiffs – all of whom lived near the mine’s project site or ore transportation route – filed litigation in 2022 before the Chiang Mai Administrative Court, seeking revocation of the EIA issued over a decade prior. They argued that the EIA suffered numerous substantive and procedural defects, including the fabrication of documents related to public participation, lack of public participation and a failure to account for language barriers, which posed a serious obstacle to the ethnic Karen community’s meaningful involvement. Permitting 99 Thuvanon to conduct mining operations based on the flawed EIA, the plaintiffs contended, would negatively impact the Karen community, the plaintiffs’ traditional livelihoods, agricultural areas and local ecologies. Doing so would also risk heightening the threat of forest floods, exacerbating air and noise pollution and contaminating and acidifying the water supply with mine drainage effluents. The plaintiffs alleged that the EIA’s prior approval was unlawful because the Executive Committee had failed to consider the plaintiffs’ identification of numerous inaccuracies therein and had further failed to review the project’s public participation process. On this basis, the plaintiffs sought annulment of the EIA. Additionally, the plaintiffs requested that the Court issue an interim injunction suspending the 2011 approval and enjoining any act involving the use of the project’s EIA until a final verdict could be issued.

In an enormous stopgap victory for the plaintiffs, the Court in 2022 agreed to issue a temporary injunction suspending the EIA’s approval and preventing the defendants from conducting any operations dependent upon it. In the context of projects likely to impact fundamental freedoms such as the right to manage, maintain and utilize natural resources, environment and biodiversity in a balanced and sustainable manner (R2HE), the Court found that the domestic Constitution recognized and supported enforcement of a diverse array of participation rights. 

Here, the Court found that the EIA had failed to consider impacts on the agricultural areas and communities dependent on the Huay Pha Khao stream system, which the mining operation planned to divert. Additionally, the EIA included no assessment of impacts on water and soil quality due to mine drainage, worsening air pollution or impacts on public health and had improperly been limited to a radius of three kilometers around the project site. Lastly, reports of irregularities and forgeries related to the public participation process surfaced with the Om Koy Police Station and the National Human Rights Commission (NHRC), with subsequent reports suggesting that the process had violated human rights norms. Based on these deficiencies, the Court held that the EIA approval was “probably inconsistent” with the law and that the “severe and irrecoverable damage” likely to result from the project justified the issuance of an interim injunction. 

Although the injunction is temporary and will only hold until the Court issues a final verdict, it nonetheless remains a promising indication of the Court’s intent to safeguard the plaintiffs’ R2HE as required under the law. As of this writing, the case remains pending.

Using an established domestic body of law

The recognition of established protections for environmental and other fundamental rights played a central role in this case, with the Court noting that sections 57, 58, 66 and 67 of the Constitution of the Kingdom of Thailand entitles citizens and communities to a robust set of participation privileges in the context of projects likely to impact their environmental, health, quality of life or other essential rights – including the right to manage, maintain and utilize natural resources, environment and biodiversity in a balanced and sustainable manner (R2HE). Here, because the project implicated a fundamental right, the plaintiffs were entitled to receive information to express their opinions, have their voices heard and participate in the decision-making process of state officials.

Invoking the political significance of the R2HE

Much of this provisional decision turned on the close ties between R2HE and democratic environmental decision-making. A primary concern for the Court related to the honesty and efficacy of the coal-mining project’s public participation processes and failure of the EIA to account for all stakeholders contributed significantly to the Court’s finding that the assessment was deficient. Even more importantly, the Court took the evidence of forged signatures and bad faith conduct evinced by the NHRC’s independent investigation very seriously. They ascertained irregularities in the EIA and found that the process violated the communities’ human rights. That the State authorities had not taken heed of these reports was, to the Court, an omission not permissibly left up to agency discretion.

Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations

Recognizing that the plaintiffs’ claim implicated the constitutional R2HE, the Court emphasized corresponding governmental obligations to safeguard that right – including duties to disseminate justifications for governmental decisions before the approval of potentially harmful activities and to carefully ensure, during the implementation of such projects, the minimization of negative impacts on individuals, communities, the environment and biodiversity.

“The implementation of a project [] which might cause adverse impacts on the community in terms of [] environmental quality, natural resources and health,” the Court confirmed, “is prohibited, except when [] an assessment of the impacts on the environmental quality and health of the local people and the public consultation of the people and stakeholders have been conducted in advance.” The Court’s formulation of this obligation notably places the burden on the government to prove it has complied with the law. It gives communities and ecosystems the benefit of the doubt rather than state agencies and private actors seeking to implement such projects. Therefore, the Court’s ruling supports the proposition that R2HE carries a presumption in favor of citizens and the environment, and imposes positive obligations on the government to ensure the health of both.

Methods for ensuring baseline protections

This case paradigmatically demonstrates the power of R2HE to ensure baseline protections and support the imposition of interlocutory, precautionary measures to defend communities and the environment. By granting the plaintiffs’ request for injunctive relief and pressing pause on 99 Thuvanon’s open-pit coal mining activities, the Court prevented additional and potentially irremediable harms from occurring while the final verdict remains pending. Similarly, the Court’s parallel order to revise the EIA and ensure meaningful public participation “at all steps” may bring to light critical environmental evidence and help to afford the plaintiffs’ their right to weigh in on decisions that impact them. 

In this vein, the Court, in justifying its interim injunction, emphasized that “environmental damage tends to emit severe and sustaining impacts for a long time,” such that waiting to rule definitely on the case could render later-in-time judicial remedies insufficient. Although the Court did not explicitly invoke international environmental principles, the implicit application of the precautionary principle safeguarded the plaintiffs’ fundamental R2HE before irreversible damage occurred. The case demonstrates the power of injunctive relief to help ensure baseline protections.

This case demonstrates the power of constitutional R2HE and related environmental rights to achieve redress for harms to ecosystems and communities, sometimes preventing those harms from occurring at all.

Simultaneously, Residents of Ban Ka Ber Din, et al. v. Office of Natural Resources highlights the critical role of public participation in democratic environmental decision-making and in safeguarding R2HE more generally, particularly when marginalized communities lack sufficient recourse to justice and where evidence suggests foul play by polluting actors.