Jet Sri-Ngeon v. Minister of Industry, Decided Case No. 2/2563 (Chiang Mai Administrative Court decision) (22 April 2020)

On October 22, 2015, 386 members of Ban Haeng Conservation Group (“Rak Ban Haeng Group”) in Ban Haeng subdistrict, Ngao district, Lampang province filed an administrative suit against eight defendants: (1) Thailand’s Minister of Industry, (2) Department of Primary Industries and Mines, (3) Lampang Provincial Office of Industry, (4) Ban Haeng Subdistrict Headman, (5) the National Environmental Board’s Expert Committee on Mines, Smelting and Mineral Processing, (6) Office of National Resources and Environmental Policy and Planning, (7) Ban Haeng Subdistrict Administration Organization, and (8) Kiew Luang Co. Ltd.

Plaintiffs sought injunctive relief to:

  • Revoke the lignite mining permit for failure to meet procedural requirements by law,
  • Revoke the environmental impact assessment (EIA) report for containing false information and failing to meet procedural requirements by law,
  • Invalidate a public hearing report on the Lignite Mining Project for containing false information,
  • Invalidate a resolution by the Ban Haeng Subdistrict Administration Organization Council approving the Lignite Mining Project for being based on false information,
  • Invalidate the certified investigation report on local opposition to the mining project for containing false information,
  • Invalidate the site inspection report that accompanied the mining permit application, and
  • Declare as unlawful all actions by Defendants that have led to the issuance of the mining permit.

On April 22, 2020, the Chiang Mai Administrative Court issued the following decision:

  1. Whether all 386 plaintiffs had standing to sue

The Court ruled that all 386 plaintiffs were residing and working in Village 1 and Village 7 of Ban Haeng subdistrict, Ngao district, Lampang province, which is the site at issue in the mining permit. Plaintiffs had the constitutional right to participate in the balanced and sustainable protection, promotion and preservation of environmental quality and biological diversity in the area. Plaintiffs had the constitutional right to live normally and continuously in an environment that will not harm their health, welfare, or quality of life. All 386 plaintiffs were also directly affected as stakeholders, who would be impacted in more particularized ways than the general public from the permitted mining operation.

Although the permitted mining operation had not yet begun when the suit was filed, all 386 plaintiffs would suffer from unavoidable injury or harm from the issuance of the mining permit by Defendant 1. Therefore, all 386 plaintiffs had standing to sue in Administrative Court within the prescribed time limits. Their suit was not barred as a duplicate complaint.

 

  1. Whether the Minister of Industry (Defendant 1) acted lawfully in issuing Mining Permit No. 30485/16138 on August 10, 2015 for Kiew Luang Co. Ltd. (Defendant 8), and whether the mining permit review process met essential procedural requirements according to law.

The Court ruled that the mining permit site was a reserved forest that had not yet been lawfully permitted for other uses. This requirement is essential to the mining permit review process, according to Section 9, Paragraph 1(5)of the 2004 Department of Primary Industries and Mines Regulation on Procedures related to Mining Permit Applications, Permit Issuances, Permit Renewals and Permit Transfers. 

The Court cited a prior ruling by Chiang Mai Administrative Court in Undecided Case No. Sor 13/2557 (2014) and Decided Case No. Sor 1/2563 (2020), in which Ms. Sommai Harntecha filed suit along with 439 other plaintiffs against the Director General of the Forestry Department and 8 other defendants. Plaintiffs alleged that Kiew Luang Co. Ltd. (Defendant 8 in the current case) filed a mining permit application for a national reserved forest site, which still was a subject of dispute with the people on-site and in nearby areas. According to Section 8(5) of the 2005 Forestry Department Regulation on Permitting Uses or Residency in National Reserved Forests, which is an essential procedural requirement, permitted use of a national reserved forest may not be located in an area of dispute with the people on-site and in nearby areas. Thus, it was unlawful to issue the Letter of Permission to Enter and Use or Reside in a National Reserved Forest and the Permission Order for Forest Clearing issued by the Lampang Provincial Governor to Kiew Luang Co. Ltd. (Defendant 8 in the current case) for forest clearing in Ban Haeng subdistrict, Ngao district, Lampang province for the purpose of lignite coal mining as indicated in Mining Permit Applications No. 5/2553 (2010) and No. 6/2553 (2010). The Court revoked the Letter of Permission for Forest Use and the Permission Order for Forest Clearing, with retroactive effect to the date of issuance.

Thus, the disputed mining permit review process by Defendant 1 violated essential procedural requirements and was unlawful.

 

  1. Whether to revoke the environmental impact assessment report

The Court declined to rule whether Defendant 5 acted lawfully in approving the environmental impact assessment (EIA) report for the project proposed by Defendant 8. Resolving this dispute would not change the outcome of this case.

 

  1. Whether to declare as unlawful the actions of Defendants 2, 3, 4, 6, and 7

The Court ruled that the actions of Defendants 2, 3, 4, 6, and 7 were merely preparations and coordination for an administrative order, which is internal administrative review, not resulting in any change in legal rights or obligations. Defendant 1 had the sole legal authority to issue mining permits, not Defendants 2, 3, 4, or 7. Defendant 5 had the sole legal authority to approve environmental impact assessment reports, not Defendant 6. Thus, Plaintiffs did not have the right to sue Defendants 2, 3, 4, 6, and 7 because Plaintiffs were not harmed or threatened of unavoidable harm from their acts or omissions within the meaning of Section 42 Paragraph 1 of the 1999 Act on Establishment of Administrative Courts and Administrative Procedure.

 

  1. Whether to invalidate the certified investigation report on local opposition to the mining project

The Court ruled that the certified investigation report on local opposition to the mining project dated July 10, 2015 was merely an act of fact-finding to supplement the permit review process by Defendant 1. The certified investigation report was not binding on Defendant 1 and did not limit his discretionary authority in any way. Thus, plaintiffs were not harmed or threatened of unavoidable harm under Section 42 Paragraph 1 of the 1999 Act on Establishment of Administrative Courts and Administrative Procedure. Plaintiffs did not have the right to sue for this injunction.

 

  1. Whether to order Defendants 1-7 to act according to the Constitution and laws

The Court ruled that Defendants 1-8 are administrative agencies or government officials that are subject to the Constitution and laws, but have discretionary authority. The Court cannot interfere with the exercise of such discretion. Thus, the Court could not issue an order under Section 72 of the 1999 Act on Establishment of Administrative Courts and Administrative Procedure.

 

  1. Whether to invalidate the investigation report that accompanied the mining permit application, the public hearing report, and the Subdistrict Administration Organization Council resolution

The Court ruled that the plaintiffs’ demands fell within the definition of a duplicate complaint, barred by Section 36(1) of the 2000 Supreme Administrative Court Judicial Conference Regulation on Administrative Procedure. Plaintiffs demanded that the Court declare unlawful and invalidate the investigation report that accompanied the mining permit application, the public hearing report, the Subdistrict Administration Organization Council resolution, and the issuance of the Letter of Permission to Enter and Use or Reside in a National Reserved Forest (Mining Permits No. 5-7/2553) and the Permission Order for Forest Clearing (Mining Permits No. 5/2553 and No. 6/2553), which were used to issue Mining Permit No. 30485/16138 for Defendant 8. These demands were the same as the demands in Undecided Case No. Sor 2/2556 and Undecided Case No. Sor 13/2557 pending review by the Chiang Mai Administrative Court. Thus, the Court did not have jurisdiction to review these demands.

 

Summary

The Court revoked Mining Permit No. 30485/16138 issued on August 10, 2015 by Defendant 1, with retroactive effect to the date of issuance. The court dismissed all other demands.

This case is currently pending appeal. Defendant 8, Kiew Luang Co. Ltd. appealed to the Supreme Administrative Court. All 386 plaintiffs also appealed on the issues of invalidating the environmental impact assessment report, the public hearing report, and the Subdistrict Administration Organization Council resolution. Plaintiffs seek to set judicial precedents and to prevent the mining company from relying on these official documents to support other mining permit applications.

 

 

 

Los archivos adjuntos: 
Fecha del Recurso: 
2020
Countries and Regions: Este de Asia Tailandia
Resource Type: Cases
Resource Topic: Biodiversidad Bosques Minería Coal mining
Content for Websites: 
Coal 
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