Business and human rights: Thailand’s first environmental class action ruling forms part of growing trend of litigation in Asia
The Chatree gold mine, operated by Akara Resources, is located in Thailand's Phichit and Phetchabun provinces. pomphotothailand - stock.adobe.com
In March, a Thai court delivered its ruling in the country’s first environmental class action lawsuit, finding that villagers from two provinces should be compensated for damage caused by the operation of a gold mine. The ruling, by the Bangkok Civil Court, follows a decade of legal action by the villagers and is set to change how companies operating in the region approach their obligations towards the environment and local people.
The significance of the case is that the environmental action plans and other measures mandated by governments in the region for companies to follow are ‘no longer necessarily sufficient,’ says Aarta Alkarimi, Co-Chair of the IBA International Construction Projects Committee.
The case was brought in 2016 against Akara Resources, a subsidiary of Australian company Kingsgate, with a class of almost 400 villagers from Thailand’s Phichit and Phetchabun provinces. The villagers claimed that the company’s Chatree gold mine, which began operations in 2001, had contaminated the surrounding land and water canals. Meanwhile, exposure to unsafe levels of arsenic, manganese and cyanide – by-products of the mine’s operation – had affected the health of local people, according to blood tests taken a number of years ago.
‘The facts established that there had been a leakage of heavy metals from tailings storage facility number one, which flowed southward onto adjacent land and into natural water sources. As a result, heavy metals were detected in the canals and in the bodies of local residents,’ says Thai lawyer Punjaporn Kosolkitiwong.
It’s much easier to comply and do some enhanced due diligence upfront to prevent environmental damage rather than to have to clean it up later
Aarta Alkarimi
Co-Chair, IBA International Construction Projects Committee
Akara Resources and Kingsgate say they disagree with the Court’s findings, arguing they are based on inconclusive evidence, and will appeal the judgment. They also didn’t endorse the blood test results.
The villagers will receive monetary compensation, with the amount depending on their age and level of contamination. The Court further ordered Akara Resources to rehabilitate the contaminated public canals and water sources and to treat affected soil in surrounding areas. It also ordered the closure of one of the tailings ponds, which contain mining waste products.
‘We strongly hope to see the restoration of a healthy natural environment, and that we [the villagers] will be able to live good lives and in normal peace as we should,’ says Pimkwan Sinthornthamat, one of the village leaders.
The ruling is significant because it marks the first time a company has been held to account in Thailand for the damage caused by its operations to the environment. ‘The judgment of the civil court marks a significant shift in the responsibilities of business operators that negatively impact the environment through their operations and use of natural resources,’ says Kosolkitiwong. She believes the case will probably encourage others to file lawsuits to protect both their own rights and the environment.
Akara Resources had in place an Environmental Impact Assessment (EIA), which is mandatory in Thailand for infrastructure projects, and it argued it was therefore compliant with the law. But the ruling indicates that an EIA alone no longer suffices in respect of a company’s obligations to protect communities and the environment, says Alkarimi, a founding partner of Chrysalis International Legal Advisors in the UAE. Instead, construction companies in the region will now have to conduct climate risk assessments, implement pollution control measures and perform ongoing compliance, she says. This brings the country more in line with regulations in the EU and the US.
Emilie Palamy Pradichit, Founder and Executive Director of Manushya Foundation, who represented the villagers in the case, says the claimants plan to take further legal and advocacy action at a national and an international level. ‘This is a powerful step forward, but the fight is not over,’ she says.
The lawsuit is part of a growing trend of class action environmental litigation in Asia. The region has historically lagged behind Australia, Europe and the US because of a lack of resources, says Alkarimi. ‘The US of course has more class actions because it’s very discovery-heavy [with] lots of documents [and] lots of law firms that do it,’ she says, ‘whereas in Asia, the discovery is not as heavy, and there are not that many plaintiff law firms.’
But this is changing as legal systems adapt to accommodate environmental justice. In 2015, a legal amendment allowed Thailand’s court systems to hear such lawsuits. Alongside South Korea, Thailand is also one of the first Asian countries to begin the process of drafting corporate due diligence legislation, which will require companies to respect human rights.
Elsewhere, claimants in other countries are looking to hold corporations accountable for the damage they allege has been inflicted on the environment. For instance, a group of typhoon survivors is pursuing a case against an oil company they accuse of playing a role in increasing the severity of weather events. Indonesia has upwards of 100 ongoing climate change litigation cases, with complaints relating to forest fires, illegal logging and peatland destruction, for example.
The hope is that as such cases increase in number, companies will see the value in operating in a way that doesn’t harm people or the planet. ‘Hopefully victory in these cases can show the world that it’s much easier to comply and do some enhanced due diligence upfront to prevent environmental damage rather than to have to clean it up later,’ says Alkarimi.