But like other fishermen in this part of the Mekong in northeast Thailand, his daily catch has been steadily declining through the years. As a result, he says, more and more fishermen have been abandoning their nets.

“There’s lesser fish and they’re smaller in size,” he says. “We’re earning less than half than what we used to get eight years ago.” The reason for this, he believes, is the waters’ increasing unpredictability wrought by dams in China in the upper mainstream.

Now he sees a bigger threat, a new dam in Xayaburi province in northern Laos, the first hydropower dam to be built on the mainstream of the Mekong River. But unknown to him and to the other fishermen in Chiang Khan, they would likely stand to lose in a complex web of power play that courts the interests of only the moneyed and the powerful.

The Xayaburi dam will supply electricity to the Electricity Generating Authority (Egat), Thailand’s state energy body, with 1,260MW of power for 30 years. One of the biggest infrastructure firms in Thailand, Ch. Karnchang Public Co Ltd (CK), will be the developer with Thai banks funding it. Under the plan, commercial operations will start in January 2019.

“Once the dam is born, everything will be lost,” Sutas says.

Sutas is among the 60 million people who live and feed from the lower Mekong basin. Considered as the ‘Mother of All Rivers’, the Mekong River is the largest freshwater fishery in the world. Described as the blood line of the Mekong Region, it yields 2.5 million tonnes of fish per year—valued at US$3 billion to $6 billion—making it the most productive inland fishery in the world.

Should the Xayaburi dam be built, over 200,000 villagers will be affected. Of the 1,000 fish species in the Mekong, 41 will face extinction, including the critically endangered Mekong giant catfish.

Worrying, too, is the fact that at least 23 migratory fish species will most likely be blocked from both upstream and downstream, disrupting the life cycles of the migratory fish and reducing the river catch of up to 600,000 metric tonnes.

“The Xayaburi dam could cause irreparable damage to the Mekong fisheries. The risk of permanent damage to the Mekong biodiversity and fisheries is too great and the cost too high,” says Zeb Hogan of the University of Reno in the US in a technical review he wrote for the International Rivers, a network working to protect the Mekong River.

At what cost?

Harnessing the power of the Mekong River to supply electricity to countries in the region dates way back to the 1960s, upon the creation of the Mekong Committee—a body created to promote and supervise development projects in the Mekong. At the time, seven large-scale multi-purpose dams were proposed.

According to the Towards Ecological Recovery and Regional Alliance (Terra), these did not push through due to “geopolitical conflicts in the region and concern over social and environmental impacts”.

By 1994, the committee presented a plan to build 11 “run-of-river” hydropower dams of only 30 to 60 metres high on the Mekong mainstream.

The dam design was said to be ideal, having a much lesser impact than large storage dams. Most of the dams were planned to produce power for export to Thailand, including Xayaburi, according to a report by Terra.

When the countries signed the 1995 Mekong Agreement, the committee was replaced by the Mekong River Commission (MRC).

This move, says Terra, was supposed to “represent a shift in its mandate” and ensure sustainability. But studies on the mainstream projects continued, causing nongovernment groups to stage campaigns against the plan.

At present, there are 12 planned mainstream dams that could provide power by as much as 14,697MW, enough to sustain a country like Thailand for the next 15 to 20 years.

An evaluation commissioned by the MRC revealed, however, that these run-of-river projects cannot proceed without a fisheries baseline data, as the likely impacts on the river ecology and livelihood have yet to be properly studied.

Experts confirm that any changes in the flow of the water will “seriously damage critical habitats” like the pools of fish and organisms that contribute to the entire river’s food web.

As it is, hydro dams built on the Mekong tributaries such as the Pak Mun dam in northeast Thailand and the Theun-Hinboun in central Laos have led to a decline in fish harvest and loss of food and livelihood to communities.

Fishermen like Udon Ruenkam in Chiang Khan know this to be true. Having been a fisherman for 30 years, he has seen less and less fish from Don Khai, the island in the middle of the Mekong River where Lao and Thai fishermen go to every day to catch fish.

“The water is now too fast, and it goes up and down very often. At times, instead of fish, our nets haul in rubbish,” he claims, adding that dams built on the rivers have triggered these. “If they build the Xayaburi dam, we will lose everything.”

Transboundary impact

The scenario has equally alarmed other countries downstream, especially Cambodia where 70 per cent of its 9.8-million population resides within 15km of the river.

The loss of livelihood would have a devastating impact on villagers who heavily depend on fishing and farming as their main sources of income, Cambodia being the rice basket in the delta. The dam could potentially lessen the flow of sediments or nutrients downstream which aid farmers in growing their rice and crops.

The project’s Environment Impact Assessment (EIA) in 2010—a study done by TEAM Consulting Engineering and Management Co Ltd of Thailand and Colenco Power Engineering Limited of Switzerland for CK—was highly criticised for making no mention of any transboundary, damaging impact that the Xayaburi dam might cause.

The EIA covered villages within the project site in Laos, claiming only a few villagers will lose their land and vegetable gardens. This estimate, reports the International Rivers, is not even close to representing the number of villages that will be affected downstream and upstream.

The project’s Social Impact Assessment (SIA), a document prepared by TEAM, also had no recognition of the rights of the villagers to “full and fair compensation for lost land”. The SIA states that it will compensate by providing livelihood assistance, not with cash assistance.

An official from the Department of Electricity in Laos confirms that at least three villages have been asked to voluntarily relocate inland, with no money being offered. In an interview with AsiaNews, he says the government will help them by providing alternative job opportunities, which have yet to take place.

Consultations as ‘rubber stamp’

Experts fear that the people may not be fully aware of the extent of impact of the dam. Only 60 per cent of the people in Xayaburi who were interviewed for the EIA said they had heard about the project. But after the survey, 82.6 per cent said they were in favour, and only 2 per cent disagreed.

But International Rivers notes the figures are not surprising “given the strong central state support for the project and the reluctance of the people to contradict state policy”.

What’s more, the TEAM consultants were there to “sell the project”. In fact, the group said, the fishermen were even told to “merely adjust their gear and methods so they can carry on catching fish like before”.
Unlike in Laos, the consultations held in three provinces in Thailand in 2011 showed strong opposition from villagers.

“The people said they want additional study on fish migration and aquatic impact. They’re worried that the dam will cause erosion in the banks and the fish yield will be reduced,” says an official at the Thailand National Mekong Committee of the MRC.

She says the first national consultation on the Xayaburi dam in Thailand took place in the northern province of Chiang Rai in January 2011. Participants in that meeting said the information on the transboundary impact was not enough and that further studies are needed.

The same concerns were raised in two subsequent consultations in Loei and Nakorn Phnom in February, highlighting the fact that no single has study has yet fully covered the extent of damage a mainstream dam like Xayaburi would have on the Mekong River’s resources.

In Vietnam, the member country that has voiced much opposition to the project, two consultations were held in Can Tho City and Ha Long City in early 2011.

The people said full precaution is needed for a dam that will set a precedent for other proposed mainstream dams especially since the proposal was unclear on mitigation solutions.

Cambodians, meanwhile, supported the 10-year delay of building dams in the mainstream as proposed by the MRC in the Strategic Environment Assessment (SEA), a study done on hydropower development in the Mekong. The report recommended no decisions should be made until “remaining uncertainties and knowledge gaps” are addressed.

Access to information

The consultations in the four countries were done in compliance with the 1995 MRC Mekong Agreement on the Cooperation for the Sustainable Development. Under this, the member countries are to jointly review any development project proposed for the mainstream under the Procedures for Notification, Prior Consultation and Agreement (PNPCA).

Under the PNPCA, the member states should conduct prior consultation within members of the MRC before any project is to proceed. When the Lao government notified MRC in September 2010 about its plan in Xayaburi, nearly seven months after the EIA was completed, member countries were notified. This led to technical reviews and consultations in each country, a process that needed to be completed within six months.

But during the consultations in other countries, the EIA was reportedly not released and was treated as a secret document on orders of the Lao government.

The National Mekong Committee in Thailand also confirms that during its consultations, they could not give out a copy of the EIA because it was considered confidential. “If it were under our laws, we’re obligated to disclose the EIA to the public within a month. But for Xayaburi, we were not allowed to disclose it.”

“Public input was absent in the EIA,” says Dr Philip Hirsch of the Australian Mekong Resource Centre in a paper he wrote for International Rivers. “The prior consultation process is flawed because stakeholders (did not have) access to the EIA.”

A senior knowledge management officer of a nongovernment organisation in Laos confirms that the government refused to release a copy of the EIA.

“A person from the MRC who attended the consultation said the government merely wanted the people to to say ‘yes’ and they were merely informing them how the dam will benefit the country. The villagers were also confused since they were fed with too much technical information,” he tells AsiaNews. (The person’s name and his organisation’s are not disclosed on the interviewee’s request.)

But unlike the EIA, the dam’s Feasibility Study was released to the public in February 2011.

The feasibility study, which was done by CK and TEAM, had the same conclusions as that of the EIA. It read that the “social impact of the barrage is at medium level, while the environmental impact is at low level”.

It added that the project would benefit the Mekong countries, especially Laos and Thailand, and urged for “speedy negotiations and early conclusion of agreements” between Laos, the investor and Egat”.

The politics of power

But by April 19, during an MRC Joint Committee Special Session in Vientiane, the MRC reported that all countries instead agreed to defer the decision on the Xayaburi dam, with Vietnam strongly recommending the SEA findings that projects on the mainstream be deferred for another 10 years.

Less than a month later, during a side meeting of the prime ministers of Laos and Vietnam at the 18th Asean Summit in Jakarta, the Lao premier announced that “it agreed to temporarily suspend the Xayaburi Dam”. Both countries also agreed to instruct agencies to conduct a joint research on the dam under the framework of the MRC.

Two days before that meeting, however, a letter leaked to the International Rivers revealed that Laos on May 5 hired Poyry Energy, a Finnish consulting firm, to determine whether Laos has fulfilled its obligations under the 1995 Mekong Agreement. By June 2, Poyry said the Lao government had complied with the agreements and that it had taken the concerns of the member countries into proper consideration.

By June 9, the Xayaburi Company wrote a letter to Egat saying that Laos has complied with the 1995 Agreement and that it was now ready to execute the Power Purchase Agreement (PPA) with Egat.

Under the PPA, CK Karnchang, a subisidiary of Xayaburi Power, will be purchasing 95 per cent of the project’s 1,260MW capacity at a rate of about 2 baht per unit (6 US cents).

Several months later, Thai Senator Surajit Chiravet, member of the Senate Committee on Corruption Investigation and Good Governance Protection was quoted that a high-ranking official from the Ministry of Energy said in a Senate hearing that the PPA for Xayaburi Dam had been signed on October 29 and that Xayaburi had already been included in Thailand’s Power Development Plan.

But when news of the decision of the MRC members during the December 8, 2011, meeting in Siem Reap, Cambodia broke, declaring a need for further study yet again, Thai senators launched an investigation. They wanted to know if Egat violated the Thai government’s instructions to have the MRC member governments’ approval first before any agreement to purchase power from Xayaburi is to be made.

Breaches of obligations

According to International Rivers, Senator Surajit said the signing of the PPA likely violated the resolution of the National Energy Policy Council, the body that has the authority to approve power import projects, stating that projects like Xayaburi need to fully comply with the 1995 Mekong Agreement before any of the countries are to enter into any concessions.

“By moving under the radar of the Mekong River Commission, Thailand and Laos have threatened the spirit of regional cooperation and the integrity of the 1995 Mekong Agreement…it’s no surprise that the dam builder Ch. Karnchang has lobbied extensively for the dam to proceed,” says Piapoorn Deetes of the International Rivers.

Ame Trandem, Southeast Asia programme director of International Rivers, says Thailand now has to cancel the PPA because the process was not in accordance with the 1995 agreement.

“The gaps still exist and to proceed with the dam without a regional decision is not only reckless and irresponsible, it also threatens regional security,” she says.

But for the Lao engineer from the Department of Electricity, who refuses to be identified for fear of reprisal, he says the PNPCA is nothing but a “document” to implement the 1995 Agreement and that it should be treated independently from the economic agreement.

“The project is momentarily delayed but we will not stop,” he confirms. Construction for roads and buildings is still ongoing in Xayaburi, he says, but no infrastructure work has started on the river. According to him, Laos will have to wait for the countries to agree until they can start with the dam structure.

In the meantime, the Lao government is considering paying for another firm to conduct more studies on the transboundary impact. It is also waiting for another study spearheaded by the MRC, which would include the transboundary impact of hydro projects like Xayaburi in the Mekong region, as part of the agreement during the meeting in Siem Reap.

“We have to consult with other countries to make them happy. We’re being gentlemen now,” he says.

But should Laos proceed with the project without the required consensus, it would be in breach of its obligations under the Mekong Agreement.

It would also be violating its commitment to negotiate and consult in good faith under international laws, specifically under the Rio Declaration on Environment and Development. All countries in the Mekong Region under the Rio declaration agreed to consult each other first should there be projects “that may have a significant adverse transboundary environmental effect”.

And should there be disputes that cannot be resolved among the countries, Trandem says under the Mekong Agreement, they may elevate matters to the International Court of Justice.

But for fishermen like Sutas, whose voice and others like him have been largely ignored and unheard, the message is simple: “We love the Mekong River. We don’t want any dams.”

(Published in the January 26 to February 9, 2012 issue of Asia News, a publication of the Asia News Network in Bangkok, Thailand.)

So it is not surprising that mining has come to dominate the export earnings of many African countries.
In 2005, minerals accounted for more than 80 percent of exports in Botswana, Congo, DRC, Guinea, and Sierra Leone and more than 50 percent in Zambia, Mali, Mauritania, Mozambique, and Namibia.
By 2008, sustained demand from a burgeoning Chinese economy had seen prices for minerals reach new heights.

But there is a puzzle: “If Africa is so resource-rich, how come most of its citizens are so very poor?” Despite the fact that over half of African countries are significant mineral producers, widespread poverty is still the norm.

Meeting the challenge
So the challenge is clear: “How can underground mineral potential translate into actual development for the millions of Africans living on the surface?” There have been many policies and approaches over the years that have begun to grapple with the task, but one of the most promising is the African Mining Vision (AMV).

The vision was adopted after the first meeting of African mineral resource development ministers held in Addis Ababa in late 2008 and was subsequently endorsed by the African heads of State and government at the February 2009 African Union Summit. As such, it is Africa’s own take on the problem.

What sets the AMV apart is that it extends policy beyond a narrow focus on mining itself. For the AMV, there is more to it than to managing the extraction of resources and then finding optimal ways to collect and apportion the revenue.
It is not that these things are not important – rather, the AMV approaches the issue differently. Central to the AMV approach is to put development outcomes at the heart of mineral regimes.

How does it work? A key point is that it is applicable at many levels. For example, when mining contracts are negotiated with foreign investors not only do the right revenue gathering instruments need to be in place, there also needs to be stipulations for local supply of goods and services to the mining operation.
The rationale is that this would stimulate the local economy and help prevent mines operating as enclave enterprises.

The bigger picture
But this example hardly does justice to the scale of the ambition evoked by a mining vision. If mining is to be the motor of development, that means thinking big. One such big example would be careful planning of the major infrastructure that takes minerals to port.
That means planning strategically and asking, “why does this road follow this route from mine to port, when if it were planned differently, it could also open up potential in export agriculture?”

In fact, many natural resources in Africa are left stranded in this way because they lie far from ports and near no transport routes whatsoever. It is not only mining that has unlocked potential.

But also note how the AMV encourages synergy between mining and other sectors. Development rarely comes from exploiting a single resource – in fact that leads to dependency.
Development is about leveraging one profitable business so that it helps another. Being visionary in the AMV sense means looking ahead and planning strategically.

But to be visionary also means expanding your horizons, and for the AMV, one such horizon is Africa’s national frontiers. One of the main reasons why Africa has been held back from developing through industrialisation is that its national markets are relatively small; and there is insufficient demand in a poor country to merit major manufacturing or even much mineral processing. But seen from a regional perspective, huge economies of scale can come into play.

That is why the African Union’s NEPAD initiative has set out plans for promoting corridors of development that span nation states and link up major transport routes with mines, power, and ports.
In each of these 17 trade super highways, there is an enhanced opportunity for businesses to get established and then to support each other. The Africa Mining Vision embraces this idea of corridors, clusters and linkages, and it calls for mining to be integrated into trade and industrial policy too.

Mining is uniquely placed to become the motor of African development because it is only mining that can raise the kinds of money that is needed to construct the big infrastructure links.
Mining can take the lead. It holds the key not only to unlocking the mineral wealth below but also the human capital above.

Vision into Action
Last December saw the second session of the African Union Conference on mining matters. African experts in mining and natural resources development, representatives of African chambers of mines and industry, African private sector, academia, UN agencies and NGOs and other partners joined Ministers Responsible for Mineral Resources Development in discussing the implementation of the Africa Mining Vision.

At their disposal, they had a major new report on Minerals and Africa’s Development. The report becomes the standard reference on which to base templates, toolkits, guidelines and briefing notes for African policy makers, government officials and other stakeholders involved in formulating and implementing new developmental mineral regimes.

The report
was compiled by a team of 20 experts – the
International Study Group (ISG) – drawn from the United
Nations, universities, civil society and the mining research
community in Africa, Europe and North America.

Chief, Infrastructure and Natural Resources
Development at the Regional Integration, Infrastructure and
Trade Division of UNECA Wilfred Lombe said: “This report concludes that
one reason that mineral wealth has not led to development in
Africa is that mining has until now often been treated as a
separate issue.
Most of the time policy decisions have been dominated by
questions of how best to tax mining
companies and then how to spend the revenue and this is a
reflection of the enclave status of much mining in
Africa.”

Mr Lombe added: “The ISG report is different because it
examines how mining could become the motor of development.
It puts mining centre stage and argues it can be a
catalyst for development rather than just a
revenue generating opportunity.”
Deputy minister of Mines and Natural Resources Richard Musukwa, is keen to see Zambia maximise benefits from its mineral resources in line with the vision.
Mr Musukwa, who represented Zambia at the conference, says the PF government is determined to address problems in the mining sector and ensure the country derives maximum benefits from its mineral resources.
In an interview on the sidelines of the Second African Union Conference of Ministers Responsible for Minerals Development yesterday, Mr Musukwa said it was clear that Zambia has not derived maximum benefit from mining taxes.
“Zambians must benefit from the mineral resources, there is no excuse. The PF government is determined to bring parity in the mining industry,” Mr Musukwa said.
“That is why people voted for us. We will not kill the goose that lays the golden egg but we want to ensure people, who have sacrificed for a long time, benefit from mineral resources,” he said.
Mr Musukwa said Zambia will take advantage of the African Mining Vision (AMV) to ensure the mineral resources benefit local communities.
“The AMV is like a redraft of the PF manifesto in terms of maximising benefits from mineral resources. Zambia is desirous to obtain maximum benefits from mineral resources by ensuring that mining companies contribute significantly to infrastructure development,” he said.
“It is gratifying to note that AMV was generated as a result of many countries not benefitting from mineral resources and this is evident in the Zambian scenario.
“Each time Zambians demand to benefit from mineral resources, there is shifting of goal posts such as claim of no profit.”
The conference also agreed an Action Plan which emphasises that now is the moment when Africa can tilt decisively towards development. It’s time to turn the Africa Mining Vision into Action.

A major report on all aspects of mining in Africa will be launched on the sidelines of the on going Conference of Ministers Responsible for Mineral Resources Development in the Ethiopian capital Addis Ababa tomorrow.
Titled ‘Minerals and Africa’s Development, the report was compiled by a team of 20 experts – the International Study Group (ISG) – drawn from the United Nations,universities, Civil Society and the mining research community in Africa, Europe and North America, according to a joint statement from theAfrican Union Commission (AUC) and the UN Economic Commission for Africa (UNECA) .
The experts were identified by UNECA and the AUC..
The report, which runs to over 200 pages includes numerous case studies and data on all aspects of mining in Africa – and frequently makes reference to experience outside the continent.

Wilfred Lombe, Chief, Infrastructure and Natural Resources Development at the Regional Integration, Infrastructure and Trade Division of ECA says: “This report concludes that one reason that mineral wealthhas not led to development in Africa is that mining has until now often been treated as a separate issue.
Most of the time policy decisions have been dominated by questions of how best to tax mining
companies and then how to spend the revenue and this is a reflection of the enclave status of much mining in Africa.”

Mr Lombe adds: “The ISG report is different because it examines how mining could become the motor of development.
It puts mining centre stage and argues it can be a catalyst for development rather just a
revenue generating opportunity”.

TherReport and the experts who compiled it are serving as a major resource for the Conference, whose theme is: ‘Building sustainable future for Africa’s extractive industry, from vision to action’.

Each chapter of the report identifies the policy implications that come out of its detailed analysis of Africa mining regimes.
It also emphasises that there is a need to revisit the major issues one by one; but this must be done each time from a development perspective.

The experts and senior officials are currently reviewing an Action Plan for consideration by the Ministers responsible for Minerals today and tomorrow.
The ministers are expected to adopt the Action Plan for implementation.

The five day conference has been jointly organised by the AUC and UNECA.

THE second African Union Conference of ministers
Responsible for minerals development opened yesterday with a
clarion call for the continent to ensure that it achieves
economic development from its mineral wealth.
African Union Commission (AUC) Director for Trade and
Industry Jean Noel Francois was the first to give a litany
of challenges in Africa’s mining sector.
In his opening remarks to the five day conference whose
theme is :Building a Sustainable Future for Africa’s
Extractive Industries: From Vision to Action,” Mr Francois
noted that Africa’s mineral resources are fuelling the
growth and development of many industrialized and emerging
economies, yet the continent remains poor and dependent on
donor assistance for national budget support.
“Africa consumes very little of its own mineral resources
and exports most of it as raw materials, with little or no
local value addition and benefication.
This is a key challenge for the continent if it is to
achieve socio-economic development from its resource
wealth,” Mr francois said.
“Another important challenge is to ensure that the
mineral resource wealth serves as an engine of growth and
development long after minerals have been depleted,” he
said.
Mr Francois noted that Africa was ‘the continent of the
future’ and that with appropriate measures, it will
register higher percentages of growth.
“I want to say to you today; let’s get rid of
Afro-pessimism. Do not despair. Our future is in our hands
and we have an obligation towards history,” he said.
And UN Economic Commission for Africa (UNECA) Director for
Regional Integration, Infrastructure and Trade Division,
Stephen Karingi joined the growing list expressing
frustration as to why Africa continues being poor despite
its abundant mineral wealth.
“And we are all well aware that since 2003, mineral
commodity prices have surged on account of high demand in
emerging economies like China, India and Brazil which are
going through an unprecedented phase of industrial
expansion.
Yet we are further told that Africa has not really
benefitted from these high prices due to a number of
structural weaknesses in its mining sector,” Mr Karingi
said.
He noted that fiscal frameworks in Africa’s mineral
sector are not optimized-African governments have signed
mineral development agreements that provide far more
incentives and benefits to mining companies than anyone
else.
Mr Karingi said during the recent and continuing boom,
Africa’s share of the windfall earnings has been
negligible compared to what mining companies have realized.
In 2010, net profits for the top 40 mining companies grew
by 156 percent to US$110 billion and the net asset base of
these companies now exceeds US$1 trillion, he observed.
“The high earnings in the last seven years or so prompted
countries like Australia and India to increase taxes on
windfall earnings, and yet here in Africa, we are hesitant
to do so on account that we might frighten away the goose
and have no more golden eggs,” Mr Karingi said.
He also bemoaned that mining contracts in Africa remain
mired in secrecy; communities continue to be marginalized
and they are not stakeholders in mineral exploration.
“In any case, they lack voice and information on their
rights to participate in minerals decision making.
Yet they are the most affected, and often displaced, as new
mines develop,” Mr Karingi said.
He also noted that small scale mining in Africa is
often the forgotten sector and that in quite a number of
small scale mines, the activities continue to be illegal and
under exploited.
“Yet we are aware that small scale mining is not just a
potentially lucrative economic activity but socially
supports a number of rural livelihoods.
I can not therefore sufficiently emphasise the significance
of small scale mining to uplifting rural areas where some 70
percent of our population lives, in poverty mostly,” Mr
Karingi said.

The Mushishima is a tributary of the Kafue River, which accounts for about 40 percent of Zambia’s domestic water supply but is, unfortunately, also the country’s most polluted river.

Supreme Court judge Phillip Musonda sitting as High Court judge ordered that each of the 2000 residents be paid K4 million as general damages and K1 million as punitive damages.
He also ordered that the damages should attract the central bank’s long term deposit rate from the issuance of the writ to the day of judgment and later short-term deposit rate until payment is made.
In delivering judgment, Justice Musonda who castigated KCM for its irresponsible behavior said the development will deter would-be polluters from discharging poisonous substances without diminishing their potency to cause harm to the environment, human beings and animals.
In the judgment delivered on November 10, Justice Musonda said the polluting of the water by the mining company was lack of corporate social responsibility, criminal and a tipping point for corporate recklessness.
In 2007, James Nyasulu and others sued KCM, the Environmental Council of Zambia (ECZ), now Zambia Environmental management Agency (ZEMA) and Chingola Municipal Council for discharging effluent from its mining operations into the stream from which they get drinking water.
ECZ, as second defendant, was sued for allegedly failing or neglecting to carry out inspection or supervise maintenance of the pipes to meet the acceptable standards while the municipal council was sued for failing to take adequate measures to mitigate and control the effects of the pollution of water by maintaining sufficient water reserves.
But Justice Musonda did not find any case against ECZ because he found no negligence on their part, adding that ECZ did the best it could by even shutting KCM operations at one point.
He said ECZ was dealing with a truant investor and it was not too late to prosecute KCM and set an example to others.
Justice Musonda said the fact that Zambia was in dire need of foreign investment to improve the well-being of its people does not mean its people should be dehumanized by ‘greed and crude capitalism’ which put profit above human life.
He said the plaintiffs had proved their case against KCM in common law and statutory law that the mining company was reckless and had no regard for human, animal and plant life because they thought they were politically correct and connected.
“The courts have a duty to protect poor communities from the powerful and politically connected.
I agree with the plaintiff’s pleadings that KCM was shielded from criminal prosecution by political connections and financial influence, which put them beyond the pale of criminal justice,” Justice Musonda said.
He said whether human beings had died or not, there was gross recklessness on the part of KCM which must bear the moral, criminal and civil liability for the appalling tragedy because the company turned chingola residents into ‘guinea pigs’ and showed no remorse.
Justice Musonda said the plaintiffs had called victims of the pollution and expert evidence to prove that there was pollution.
Daison Mulenga, one of the affected residents who testified in the matter, told the court that in November 2006, there was no water supply for 10 days in Kabundi township and Mulonga Water and Sewerage Company supplied them with water pumped from Kafue River.
Mr Mulenga said after drinking the water, he experienced stomach pains, diarrhea and chest pains and that his sight was also affected.
Another witness Siku Nkambalume said his wife went to draw water from Kafue River for cooking, bathing and drinking but the following day, he had stomach pain and that him and the children had a runny stomach.
He was later informed by a doctor from Chingola’s Kakoso clinic that the water was polluted.
The judgment has cheered many.
Lusaka lawyer Kelvin Bwalya said he was happy that judgement had been passed in favour of his clients and that it was an important and a landmark case which can be used to pursue other offenders.

Reverend Esson Simbeye of Chingola, for example, says the K10 billion KCM has been ordered to pay for polluting the Mushishima stream is inadequate, but will at least serve as a ‘wake up call’ for mining companies to stop polluting the environment with impunity.
Zambia Environmental Management Agency (ZEMA) principal information and communications officer Irene Chipili is upbeat about the judgment.
“As ZEMA, we are happy with the judgment because this has shown that we carried out our work in accordance with the provisions of the law then using the Environmental Protection and Pollution Control Act (EPPCA). For that reason, we were exonerated in this case,” Mrs Chipili said.

ZEMA was until April this year operating under the EPPCA which has since been repealed and replaced with the Environmental Managment Act (EMA). One of the reasons for this amendment related to the weak provisions in the EPPCA which the EMA has now taken care of.

“In comparison with the EPPCA, the EMA provides for enhanced public participation in environmental management. It provides for an option for both ZEMA and members of the public to sue for damages following pollution and this is the provision that was used by Chingola residents,” Mrs Chipili said.
“We would like to encourage more of such vigilant actions from members of the public because environmental protection should not be a preserve of enforcement agencies alone.
Effective environmental management in this country requires the active participation of all stakeholders including the general public.”

But KCM, a subsidiary of the London-registered Vedanta, whose market capitalization is more than US$4.4billion, says it is consulting its lawyers regarding its legal options following the Lusaka High court ruling.
KCM head of public relations Joy Sata said KCM is a responsible company which has adopted global best-practices and complies with all local regulatory requirements on environment, health and safety.
Ms Sata said KCM has a zero tolerance policy on any action that will compromise the health and safety of its employees or residents.
“Over the years, KCM has taken many steps, including a multi-billion dollar investment programme to address the many issues it inherited at privatization.
Significant progress has been made to date in upgrading its assets and reducing the risk of any adverse impacts on the environment,” she said.
But all in all, it is notable that legislation and enforcement is progressively taking care of interests of ordinary citizens who have been victims of environmentally unfriendly mining activities.

But just how big is the land that will be given out to the farmers? In this visual presentation prepared by InterAksyon.com, we compared the total land area of the hacienda that will be awarded to its tillers to the country’s landmarks and popular places.

Click here to view graphic.

For Verma,  this is the beginning of a new chapter in her life. Like the majority of the Teduray tribe, she was born in Maguindanao but had to move to Sultan Kudarat in 1997 following the conflicts in the province.

“This is the first time in my life to have a real identification,” she said.

Born in one of the poorest regions in the Philippines, Verma wanted to give a better life to her seven children. But she is often denied a job, almost rejected admission to school and has been asked countless of time to prove her identity.

Now, Verma is the first recipient of the United Nations High Commission for Refugees-funded program that aims to provide, before the year ends, some 60,000 free birth certificates to people in Mindanao including indigenous people affected by decades-long conflict in the area. The UNHCR began the program last month.

In South Upi, where Verma received her birth certificate, the international agency aims to help 3,500 people get their birth certificates. According to the National Commission for Culture and the Arts, the Tedurai population is estimated to be at 67, 745.

Bernard Kerblat, UNHCR’s representative in the Philippines, stressed the importance of having a birth certificate among marginalized communities to assert their rights.

“It also prevents them from becoming stateless. That is why this is a critical initiative for all of us,” he said.

Government agencies like the Department of Social Work and Development, Civil Registrar’s Office and the Office of the Southern Cultural Communities (OSCC) also helped out in the project. The OSCC is also part of the team that registered traditional marriages.

In the Philippines, a birth certificate is perhaps the most important document about one’s identity. This is the basic requirement for all other Ids provided by the government .  In Metro Manila, a copy of the birth certificate usually costs between 150 to 500 pesos depending on whether it was secured personally or delivered by mail.

Verma plans to use the birth certificate to get a new lease on her life.

“I now feel a connection with the government. Back then, everything felt uncertain,” she said.