Vietnamese Law on Public Consultation in Environmental Impact Assessment

In mountainous and remote areas, where people have little opportunity to directly access government policies, awareness of the right to consultation is not high. However, rural areas, craft villages and residents in economic zones have a higher level of education, but not all of them know and care about protecting their rights to be consulted when there are projects in that area. People often do not care much about the impacts on the general environment but only pay attention to the benefits they will receive when the project is formed. Understanding this mentality, many project owners only present the positive impacts of the project during the consultation process to receive consensus from the community.

During the process of preparing EIA reports, most project owners and consulting agencies have consulted with the community, especially for projects related to land clearance and resettlement. However, most of this consultation has only been conducted in the form of sociological surveys or direct interviews. On the other hand, the consultation has only stopped at finding out the wishes or reactions of the community about the project. Community consultation aimed at exploiting indigenous knowledge has hardly been carried out. The main reason is that project owners have not invested adequate time and money for this, on the other hand, there are no clear and specific regulations for this type of activity.

During the appraisal process of the EIA report, the participation of the community has not been mobilized. The main reason is that the number of Council members is limited according to regulations, so inviting community representatives to participate in the Council is difficult. In addition, the time limit for the appraisal of the EIA report is very limited. In addition, the material and technical conditions for bringing the EIA report to the public are also very difficult.

Fourth, consultation time is limited.

The consultation period was too short, only 15 days, which was one of the reasons why the TVCĐ became sketchy and perfunctory. After receiving the EIA report

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Along with a number of related documents, the People's Committee at the commune level as well as a number of related subjects only have 15 days to both study the contents of the EIA report and comment on those contents. The intellectual level of the people is still limited, and not all subjects have the opportunity to fully access issues related to the project. Therefore, it is understandable that the community has not given many feedback opinions. More specifically, there are many cases where state agencies also send documents to solicit opinions from social organizations, but in a very short time, even sending today and requesting a response the next day. Some projects have prepared and delivered the content of the consultation response in the direction of agreeing with the EIA report that the project has prepared.

Even with an EIA report of large socio-economic development projects, the 2014 Law on Environmental Protection stipulates: consultation within 30 days only. This is impossible. It will invalidate the consultation, making the EIA report consultation a formality.

According to Mr. Nguyen Duc Tung, Deputy Director of the Institute of Environment and Sustainable Development, specific experience in Vietnam as well as in most countries in the world, it is impossible to do a good job of consulting on EIA reports of these projects in 30 days. Normally, that time must be many months, even years. In fact, in Vietnam, many EIA reports of large development projects have had to be consulted for many years.

Fifth, lack of feasibility and community monitoring mechanism.

The procedures for preparing, appraising, approving and ensuring the implementation of EIA reports in practice have relatively strict regulations on ensuring the community's right to participate in giving opinions, the right to have their opinions heard, especially opinions that do not agree with project implementation or do not agree with environmental protection measures. Community objections must be clearly stated in EIA reports submitted for appraisal and approval. In terms of law, it can be said that the regulations on procedures to ensure community participation in the process of preparing, appraising and approving EIA reports are currently relatively strict. However, the activity of preparing EIA reports is a highly specialized activity and with the awareness of the community

It is difficult for the community to fully assess the technical issues of these reports. Current regulations only stipulate the procedures and order for collecting opinions of the community, without any mechanism to provide professional support to raise awareness and capacity of the community in reviewing the contents of the EIA report. Without support on technical issues, the community may have difficulty in giving opinions on projects implemented in the area and in many cases, the opinions given are not valid or hinder projects that have appropriate environmental protection plans 27 .

Similarly, community consultation. In reality, community consultation is now considered as commune-level consultation by default. However, the implementation of a socio-economic development project often has many impacts on environmental resources on a large and complex scale. EIA reports of projects also require information and knowledge in many fields of science, technology, etc. Meanwhile, the People's Committee at the commune level cannot cover and have an understanding of all issues, but can only identify some impacts in some areas, according to certain scopes of activities. In fact, in many localities in our country, the commune level often only asks about impacts on land, compensation prices, site clearance, etc. Therefore, it cannot be considered a full representation of the community related to the project as previously prescribed28 .

27. Ths. Tran Thi Quang Hong, Truong Hong Quang, Perfecting the law on EIA in Vietnam today , Journal of Law No. 6/2011

28 Hydropower construction: dividing residents to consult, bypassing common interests, on website http://118.70.241.18/english3/news/?55339/Lam-thuy-dien:-che-nho-cu-dan-de-tham-van,-qua-mat-loi-ich-chung.htm , accessed 16:35 on 16/03/1016

CHAPTER III. IMPROVING THE LAW ON COMMUNITY CONSULTATION IN ENVIRONMENTAL IMPACT ASSESSMENT

3.1. The need to improve the law on public consultation in environmental impact assessment

Since its initial appearance in a number of projects in the 1990s and its official legalization since 2005, the legal regulations on community-based environmental monitoring in EIA have developed significantly. The importance and achievements of community-based environmental monitoring cannot be denied. However, to meet the practical requirements of environmental management, it is necessary to continue to improve the legal system related to the environment, specifically the law on community-based environmental monitoring.

Firstly, community participation in EIA also contributes to ensuring community participation in environmental protection in general. The development and improvement of community participation law is a mechanism to implement the State's environmental protection policies and goals. In 1998, the Politburo of the Communist Party of Vietnam issued Directive No. 36/CT-TW on environmental protection in the period of industrialization and modernization of the country. The Directive clearly states that environmental protection is the task of the entire Party, the entire people and the entire army, as well as the role of the entire society, citizens and mass organizations. These are important bases for the socialization of environmental protection in the National Environmental Protection Strategy for the period of 2001-2010 and orientation to 2020. Resolution No. 41-NQ/TW dated November 15, 2004 on environmental protection in the period of accelerating industrialization and modernization of the country proposed the following motto for environmental protection: "taking prevention and limitation of negative impacts on the environment as the main objective, combined with pollution treatment, overcoming degradation, improving the environment and conserving nature; combining State investment with promoting the mobilization of resources in society and expanding international cooperation; combining modern technology with traditional methods." 29 This Resolution requires the establishment and development of environmental protection agencies.

29 See Article 4 Section A Chapter II Resolution No. 41-NQ/TW dated November 15, 2004 on environmental protection during the period of accelerating industrialization and modernization of the country.

legal basis and mechanisms, policies to encourage individuals, organizations and communities to participate in environmental protection work. Decision No. 166/QD-TTg dated January 21, 2014 on promulgating the Plan to implement the National Environmental Protection Strategy to 2020, with a vision to 2030 also sets out the goal of "continuing to promote propaganda activities to raise awareness of environmental protection for the community in the direction of innovating content, diversifying propaganda forms; summarizing and replicating self-management models, enhancing the role of the community in monitoring environmental protection activities." 30 Completing the law on community participation in EIA will help to quickly achieve the goal.

Second, Vietnamese law has a number of documents regulating community participation in protection work in general and in EIA in particular. However, the provisions in these documents still have some shortcomings, many provisions are unclear, causing difficulties in conducting consultation, especially regulations on determining the subjects of consultation, limited consultation time, no regulations on the responsibilities of project owners and communities in supervising the implementation of post-appraisal EIA reports, sanctions for violations are still light, not commensurate with the environmental damage caused by... Therefore, it is necessary to improve the Vietnamese legal system on environmental protection in general, and community participation in EIA in particular so that the community and related subjects can maximize the effectiveness of community participation.

Third, the completion of Vietnamese legal regulations on TVCĐ in EIA must be based on general principles of law, consistent with international law and practice on the basis of closeness to reality in Vietnam. In June 2005, the delegations attending the Mid-term Conference of donors to Vietnam and representatives of the Government, ministries/sectors and some provinces/cities of Vietnam adopted the Hanoi Declaration on aid effectiveness including 14 indicators and

30 See Article 8 Chapter II Decision No. 166/QD-TTg dated January 21, 2014 on promulgating the Plan to implement the National Environmental Protection Strategy to 2020, with a vision to 2030

14 targets to 2010 31 . Among those targets is target number 8 on EIA and social impact assessment. This target determines that by 2010 there will be a certain harmony between EIA reports and social impact assessments of Vietnam and international organizations. The serious implementation of this commitment will certainly impact the regulations on social impact assessment in EIA in Vietnam 32 . However, up to now, the results of implementing this commitment in drafting, consulting and appraising EIA reports in Vietnam have not been really outstanding.

3.2. Directions for improving Vietnamese law on community consultation in environmental impact assessment

Given the current limitations in the issue of community participation in environmental protection, solutions are needed to overcome this situation. It is necessary to improve legal regulations on the rights and obligations of the community in environmental protection in general, and in EIA work in particular, in the direction of more specific regulations on the rights and obligations of the community in environmental protection.

Firstly , it is necessary to reasonably expand the regulations on community obligations in environmental protection. Institutionalize the regulations on responsibilities, obligations and powers of organizations, unions, communities and individuals participating in EIA work, specifically in the process of preparation, approval as well as in the post-appraisal and project implementation stages.

Second, build appropriate sanctions to ensure that legal regulations are strictly implemented by the community as well as relevant parties. There are many strict and timely sanctions to create public opinion in society to support good deeds, oppose wrongdoing, and fight against organizations and individuals who deliberately violate the law. From there, limit the idea of disregarding the law as well as misjudging the important role of TVCĐ.

31 Hanoi Core Statement on Aid Effectiveness (Hanoi Core Statement, Hanoi 2005)

32 Associate Professor Le Thac Can, Institute of Environment and Sustainable Development, Things to do to consult the community in EIA of socio-economic development projects , http://www.vesdi.org.vn/vn/153n/nhung-viec-can-lam-ve-tham-van-cong-dong-trong- danh-gia-tac-dong-moi-truong-cac-du-an-phat-trien-kinh-te-xa-hoi.html , accessed 8:43, May 5, 2014

Third, the development of regulations requires the effective use of tools such as politics, propaganda, etc., especially economic tools. Because economic tools have a direct and strong impact on the community. There are regulations that enhance the benefits of the community when participating in EIA work.

Fourth, develop legal regulations to create a legal basis for community and public participation in activities in the development, appraisal and post-appraisal of EIA reports, from providing opinions related to the direct impacts of the project on the community, as well as proposing solutions to overcome negative impacts. The regulations developed must ensure the interests of the participating community, and at the same time must have incentive mechanisms, creating favorable conditions for the public to easily access information and respond to opinions easily.

3.3. Some specific proposals and recommendations to improve Vietnamese law on public consultation in environmental impact assessment

After studying the provisions of international law and the laws of some countries in the world on TVCĐ in EIA, the author would like to make some proposals to improve the law on TVCĐ in EIA as follows:

Firstly, it is necessary to clearly identify the consultation objects. To identify the consultation objects, it is necessary to base on each type of impact according to each type of project and each stage of project implementation. In each stage of the project, the level of impact on the environment and community life is different for different objects. Therefore, it is necessary to develop technical guidelines for EIA reports of specific projects, in which, clearly identify the types of project impacts according to the stages from investment, construction, operation. In addition, identifying the types of projects also helps to identify the group of organizations that need to be consulted, especially social and professional organizations related to science, engineering and technology.

The Malampaya Deepwater Natural Gas Power Project (Malapbay Project) is considered a typical project in the Philippines in terms of extensive public consultation during the implementation of the EIA. The project consultation has

was implemented before the EIA, not only with local communities where the shipyard and ship repair yard are located but also with related areas that are likely to be affected. Determining the scope of consultation for a large-scale and sprawling project like Malampaya is relatively complex and difficult. The management agency also has no standards to assess the quality of consultation. However, Pilipinas Shell Foundation - Shell's corporate social responsibility company in the Philippines - has organized a very systematic community consultation.

The current Law on Environmental Protection stipulates that the subjects of consultation include the People's Committees at the commune level, organizations, and communities directly affected by the project. This provision initially meets the requirements for the participation of subjects related to the project. However, learning from the experience of other countries as well as based on the actual situation and nature of projects in Vietnam, it is necessary to broadly stipulate the subjects of consultation as follows:

1) The communities directly affected by the positive or negative impacts on environmental resources of the project, the People's Committees at all levels are responsible for managing environmental resources in the project area. That level is the commune level if the project only impacts the environment in one commune, the district level if the project impacts the environment in many communes in the district, the provincial level if the project impacts the environment in many districts in the province.

2) Socio-political organizations, socio-professional organizations, information and communication agencies responsible for environmental resources activities in the project area.

3) Vietnamese experts and Vietnamese citizens who are interested in and knowledgeable about the environmental impact of the project, wish to contribute to the environmental resource consultation of the project and are invited by an organization responsible for participating in the project's EIA report consultation to participate in the consultation.

4) International organizations, regional organizations, foreign experts with extensive experience in environmental resource issues related to the project, wishing to consult on the content of the project's EIA report and are invited by a

Vietnamese organizations responsible for participating in the project's EIA report are invited to participate in the consultation 33 .

Second, determine the consultation method. The reliability and significance of consultation depends largely on the method and manner of consultation. In particular, community consultation in rural, mountainous and ethnic minority areas needs to be presented simply and easily understood in both form and content. In terms of form, information should be presented in native languages, avoiding the use of technical terms, if used, there should be specific explanations; increase the use of graphics (maps, tables, images, three-dimensional computer graphics) to clarify information and impacts; classify information by topic such as: legal aspects, technical aspects, environmental aspects, social and cultural aspects, health aspects, and potential economic aspects. In terms of content, information needs to be presented specifically and quantified with necessary indicators depending on each project group. Depending on the target group, there are different approaches and information provision to achieve the best consultation results, such as presentations, training, field trips or information handbooks and leaflets for local communities, and analytical reports and in-depth research reports for experts and organizations.

At the same time, there must be a separate form of consultation for households directly affected by the project such as being completely cleared, having to relocate their houses to find new places to live; there must be measures to ensure that their lives will be at least equal to or better than their current ones when implementing the project; there must be publicity and transparency in the clearance and compensation when reclaiming people's land, only reclaiming land for the purpose of national defense, security, national interests, public interests according to the Land Law, not for the benefit of a group to reclaim land from one person to another or from one organization to another. In the world, the issue

33 Associate Professor Le Thac Can, Institute of Environment and Sustainable Development, Things to do for community consultation in EIA of socio-economic development projects , http://www.vesdi.org.vn/vn/153n/nhung-viec-can-lam-ve-tham-van-cong-dong-trong-

environmental-impact-evaluation-of-social-economic-development-projects.html , accessed 8:43, May 5, 2014

Site clearance and resettlement of residents living peacefully to implement development projects is an extremely important issue, which is given priority and must be resolved in a satisfactory, fair and transparent manner. It is recommended that in the EIA for our current projects, this issue should be further emphasized through public consultation 34 .

Third, increase the consultation time. As analyzed above, the purpose of consultation is to complete the EIA report, minimize negative impacts on the environment and people, and ensure sustainable development of the project. Therefore, consultation needs to be carried out throughout the process of developing the EIA report and during the implementation of the approved EIA report to ensure that negative impacts on the environment and people are minimized. People need enough time to be able to consult effectively. Too short a time does not allow people to perceive and evaluate the issues in the EIA report. The longer the time, the more opportunities people have to give more accurate opinions. Although Decree 18/2015/ND-CP stipulates a 15-day working period for the People's Committees at the commune level and organizations directly affected, this provision should be understood as 15 days for consultation on the final report before submission for approval. This means that the People's Committees at the commune level and organizations can access information on the EIA report right from or before the time of the meeting to collect opinions from the community. Accordingly, the 15-day period is the consideration period for the final report (after editing according to the opinions and recommendations of the community) before the People's Committees at the commune level and affected organizations make a final decision on the project's EIA report.

Fourth, regulations on the information exchange mechanism between the project owner and the consulted subjects. Consultation is a two-way information exchange mechanism between the consulting organization and the consulted party. Therefore, the consultation process needs to ensure smooth information exchange. On the one hand, information related to

34 Nguyen Hoang Phuong, Do Hai Linh, Tran Thanh Thuy (2015), Institutionalizing the consultation process in EIA , p.9

Projects need to be effectively communicated to affected subjects. On the other hand, feedback from the grassroots needs to be received and processed. There needs to be specific criteria to identify “objective opinions and reasonable recommendations” that need to be studied and accepted, and accountability for relevant parties regarding these opinions and recommendations is required. Information reception points need to be established not only at state management agencies but also at the investment unit. In addition to institutionalizing this process with specific guidelines and mechanisms, it is necessary to develop accompanying sanctions to ensure compliance and enforcement of regulations.

There are many forms of receiving and responding to information that can be referred to such as: through the electronic information portals of agencies, online exchanges, emails, suggestion boxes, hotlines (free of charge), reception rooms at public agencies, dialogue meetings or answering questions, in writing. The level of convenience and effectiveness of these tools mainly depends on the positivity and responsibility of the organizations and individuals responsible for receiving and responding. Therefore, in the guidance on the EIA and consultation process, it is necessary to clearly stipulate the responsibilities and sanctions for investors and competent agencies in receiving and responding to information about the concerns of the government, local communities and social organizations regarding the proposed project. It is necessary to publicize the contact addresses of individuals and organizations responsible for receiving and responding to information, and at the same time specify the time limit for responding . 35 .

Fifth, build a mechanism to monitor implementation. Although Decree 19/2015/ND-CP has initially established the role of the community in self-selection of its representatives to monitor environmental protection activities at the local level and the role of the Fatherland Front and socio-political organizations, socio-professional organizations in providing feedback, consulting, and monitoring in the environmental field is also codified in Chapter XV of the 2014 Law on Environmental Protection, however, the mechanism to ensure that these subjects exercise their rights has not yet been specifically established.

35 Nguyen Hoang Phuong, Do Hai Linh, Tran Thanh Thuy (2015), Institutionalizing the consultation process in EIA , p.11

The Philippines experience shows that monitoring requires the participation of many stakeholders including community representatives, civil society organizations, and government agencies, and that the roles of these actors need to be formally institutionalized. In the Malampaya project, consultations were conducted in at least two rounds, not limited to directly affected communities but also extended to non-governmental organizations, church representatives, and other interested parties. Information on the project, the EIA process, forms of livelihood support, social development, and infrastructure projects, and funds were widely disclosed prior to the consultations. The consultations were designed to be flexible to suit the reality, independent of the EIA process. However, after the project was granted an environmental compliance certificate, it encountered problems, including complaints from some NGOs that the consultation process had not been properly conducted, and protests from fishermen who feared that the pipeline would affect their fishing grounds. In response to these new developments, Shell-Oxy undertook additional consultations and group meetings with the parties to address common concerns. The parties later agreed to establish a multi-stakeholder monitoring team comprising representatives from the government, NGOs, and local authorities. This team is tasked with monitoring compliance with environmental provisions at both the national and local levels36 .

China's law on public consultation in environmental impact assessment also has many progressive points. Accordingly, the law of this country ensures the participation of people in four stages: preparation, appraisal and supervision of the implementation of EIA reports. In particular, in the process of preparing EIA reports, project owners must consult widely with people; for the consultation process, the appraisal agency must publicly announce the reports. All accepted or rejected opinions must be explained and attached to the report. At the end of the report preparation stage, the project owner must prepare an implementation report. This report

36 Nguyen Hoang Phuong, Do Hai Linh, Tran Thanh Thuy (2015), Institutionalizing the consultation process in environmental impact assessment , p.9