03/01/2018
At present, environmental disputes have been becoming an issue with the increasing number of cases and their complication. Environmental dispute resolution has primarily been based on administrative approach. However, with function overlaps of concerned authorities, their over workload and their uncoordinated performance, environmental dispute resolution has been slow, causing social outrage. To address this problem, it is necessary to develop a mechanism for mediation based environmental dispute resolution that is suitable to the Vietnamese context.
Protocol of mediation based environmental dispute resolution
In 2013, with support from Asia Foundation, Institute of Strategy and Policy on Natural Resources and Environment (ISPONRE) conducted a study and proposed a mechanism for mediation based environmental dispute resolution. A result of this study is a guidance for mediation based environmental dispute resolution.
The guidance outlines six steps of a process of mediation based environmental dispute resolution: receiving the case and establishing conditions for resolving an environmental dispute, organizing dialogues among concerned parties, investigating the case, developing mediation options, organizing negotiation to agree on an option and organizing the mediation option. According to this guidance, when an environmental dispute happens, communal people’s committee is the first administrative body to receive citizens’ complaints. Case officers of the communal people’s community process the case and report to the committees’ leaders for classification. For small scale cases, the communal people’s committee is responsible for organizing mediation for the dispute, as stipulated in the Law on Environmental Protection 2014 and regulations on grassroot level mediation. For big scale cases, the case is transferred to higher people’s committees for being processed.
After receiving the case from the communal committee, District or provincial people’s committees determine scopes of issues, contents of disputes and requests from concerned parties. They then investigate possibilities of applying the mediation approach. If the concerned parties agree on the mediation approach, the committee establish a mediation based enviromental dispute resolution team. Based on collected information, the team draft a plan for resolving the dispute using mediation.
After the team leader approves the plan, the team members contact and organize dialouges among the concerned parties. It then conducts investigation and determines reasons for dispute and damage due to environmental degradation and pollution. Based on the investigation results, the team develops mediation options which ensure hamornised benefits and interests of concerned parties. In this process, the team consult with concerned parties and organize negotiations to reach concensus. It then monitors the parties’ compliance with their committements. However, during the process, different alternative approaches could be used, provided that the case is solved successfully.
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| A mediation meeting in Hồ Rái with participation of representatives of companies and local people on 4 March, 2016 |
Mediation based environmental dispute resolution in Hồ Rái area
Over the past few years, local people in Hồ Rái area (Phước Thuận Hamlet, Hòa Nhơn Commune, Hòa Vang District, Đà Nẵng City) have been surrounded by dust and noise from stone mining activities and material carrying trucks of 12 mines in the region. The mining companies did not comply with previously approved environmental impact assessment reported. The trucks were often overloaded that littered roads and generated dust. In addition, roads were not dampened which resulted in dust, in particular along main intersections. Among the 12 operating mines in Phước Thuận Hamlet, up to nine mines use inter-hamlet roads as their transport route, causing serious dust problems. The local people therefore had to change their living styles. They closed doors during daytime and only start their routine activities during night time when the trucks stop working. In addition, due to considerable elevation differences between the mines and Hồ Rái, soil erosion occurred when it rained, leading to cultivating land losses. However, compliance with environmental requirements and compensation for local farmers for their crop damage did not meet their expectation. This problem has led to local people blocking transport routes for several times to protest.
To address this problem, in 2016, ISPONRE in collaboration with Đà Nẵng DONRE implemented a pilot project on mediation based environmental dispute resolution. The pilot project used steps for dispute resolutions as recommended in the guiding document. Following the steps, a communal dispute resolution and a departmental dispute resolution were established. The two teams reviewed scope and nature of the case, then developed a damage assessment report. It was revealed that a large area of farm land had been damaged (2.85 ha) for a long period of time (2011 - 2016) and that the dispute had not been fully addressed. The resolution conducted previously by the commune focused only on determination of crop damage and discussions with the mining companies on compensation duration and rates for crop damage. Based on the collected information, the two teams developed a plan for resolving the dispute, studied current regulations on damage compensation, estimated damage and proposed measures for addressing three main issues of irrigating water shortage, soil damage and land compensation. In the meantime, they organized meetings with the farmers and mining companies to understand their expectations and wishes. The teams then developed options for solving environmental degradation issues.
With assistance of the departmental resolution team and legal advisors, on 4 March, 2016, the communal resolution team of Hòa Nhơn organised the first mediation meeting with participation of all concerned parties (representatives of 17 households and 3 companies). The meeting was successful with an agreement between the companies and affected households on the damage and suitable and feasible proposed options. It was also agreed upon reports on the environmental disputes prepared by the two mediation teams. In particular, the issue of losing land for rice cropping and water shortage was proposedly being solved by converting from rice cultivatio to melaleuca plantation to prevent soil errosion. Site determination and implementation were also discussed and agreed on in subsequent meetings.
Therefore, the pilot test of using mediation based dispute resolution has achieved expected results. The two sides have agreed on measure for resolving the dispute. In the meantim, communal officers’ knowledge and skills of mediation resolution has improved.
Difficulties, challenges and some recommendations for mediation based environmetal dispute resolution in Hồ Rái
The difficulties encountered in the dispute resolution process in Hồ Rái area include prolong duration, untrained officers and unclear divisions of tasks among team members. The mediation team faced numerous difficulties. In the meantime, it was not easy to collect information and evidence, and to determine the issues, as detailed guidance on damage assessment was not available and mediation guidance was not legalized. In addition, the dispute resolution remained dependent on business’s good wills. In fact, if the companies only pay compensation for damage without addressing pollution issues, the complaints would continue.
The pilot of using the mediation based environmental dispute resolution approach in Hòa Nhơn has shown mixed sussessful and challenging evidence. Therefore, to complete the protocol for mediation based dispute resolution, it is necessary to scale up the pilot to other provinces. The guidance will then be officially issued that helps local authorities to apply. In addition, it is necessary to develop guidance for mediation skills, collection of evidence, methods for determining causes of the issues, damage assessment and mediation option development.
Dương Thị Phương Anh, Nguyễn Trung Thắng
Hoàng Hồng Hạnh, Hoàng Thị Hiền
Institute of Strategy and Policy on Natural Resources and Environment
