First Court Decision, 3 November 2017

One o’clock in the morning, after a very long day, I’m sitting at the computer trying to think of the message we should be sending out, after court today.  When thinking about truth and history, I reach for George Orwell, and find:

“In a time of deceit telling the truth is a revolutionary act.”

The first thing to make very clear is our reaction to the news as it seems to be being published in short:  That the court today ruled that the hydropower in Valbona are legal.  In fact, they did no such thing.

What really happened is this:  they declared the court formally open, and then announced that our lawsuit was denied, and then dismissed us.  What does this actually mean?

No statement was given by the court regarding any aspect of our arguments.  No explanation of their decision was given.  There was no statement made by the court regarding any considered opinion on any of the arguments that were made, not by us – the plaintiffs – nor “them” the defendants.  These opinions are to be delivered in written form by Monday.

Has justice been served?  I suppose so – in the same sense that someone receiving a plate full of offal might be told:  Here, we’ve fed you, why are you complaining?

Well, we do complain.  This curt dismissal is not what we deserved.  It’s not what the people of Albania should expect, nor yet what they should accept.  It’s not what the local people who have made expensive and exhausting 10 hour round trips 3 times in the past 7 days simply to attend court should have been served.  Do you know what it’s like to wake up at 3 am, to get in a car, to gather others, to drive 5 hours, to attend court for 10 minutes, to get back in the car, to drive back 5 hours, to start the day at 3 am, to get home at 12 pm, to not have eaten, because you can’t really afford the trip in the first place, to have left your work, undone, 3 long days out of seven, simply because the court summons you as if you had all the time in the world to dance to their tune, and possibly, for all the expectations seem to suggest, a private helicopter at your disposal?  The people of Valbona asked for their fair day in court, instead they got quite literally a meaningless run-around.

We presented concrete arguments based on the letter of the law.  We sued the government.  We asked the government to respond to our charges which consisted of pointed breaches of procedure regarding the granting of a concession, concession contract and the granting of certain permits including – but not limited to – the environmental, construction, development and water use permits.  Instead, the court allowed the developer (who we never sued) to take over the defense.  Now think about this for a moment:  We sued the government.  The body responsible for issuing these agreements, contracts and permits.  The developer had no part nor hand in this.  So please think very carefully about this:  How is it possible that the developer’s lawyer completely took over the defense?  Because this is what happened.  I don’t think anyone will ever bother to check the records, but if you did, you would find that the lawyers for the National Territorial Council and the Ministry of Energy sat largely silent through most of the proceedings.  The other sued Ministries and Agencies – The National Environmental Agency, the National Agency for Protected Areas, the Drin-Bune Water Board – didn’t even send a lawyer to the court.  Not for a single hearing of the 14 that we travelled to attend.  Instead the defense was 90% carried out by the developers’ lawyer.

What can the developer possibly have to say of concrete pertinence to the correct function of government, other than their anecdotal experience of being just as subjected as we the locals are, to the quixotic an unexacting function of government in Albania?  In a perfect world (which lord knows this isn’t, clearly) the developer would be baying at the government just as loudly as we the locals are:  What the hell did you sign us up for?

Instead, we sat through 14 hearings in which the developer’s lawyer took the lead in ignoring our actual arguments, focusing their ‘defense’ – on behalf of the government – on spurious claims that that local people have no right to information, no right to participation, and god forbid, no right to judicial recourse.  The tried to claim that we cannot argue as a community, since we are in fact “merely individuals, with individual interest.”  After wasting half the court’s time on these arguments, the developer offered long lists of lies, in which they actually stated that they are not even using explosives, despite the fact that in fact they have been exploding tunnels day and night since April 2017. They wasted two hearings requesting to submit evidence about how much money they’ve spent, as if this had any bearing on the actual legality of the concession and permitting processes.  They then proceeded to a thoroughly circular argument the basis of which was:  The plaintiffs claim we should not have been given concession, contract or permits.  But we were given these permits, so clearly they are valid.  But this is to ignore the whole basis of our argument:  That there are excellent legal reasons why they should not have been given. It makes no sense to answer “But we were – so go suck eggs.”

And meanwhile?  What is Valbona.  I have been asked this so often lately. What is Valbona, and why do you love it so?  I am very sorry my answer has not been quick enough.  It’s as if someone asked you “What are your children?  Who is your mother?  Why do you love them so?”  How could you explain this quickly?  And I get caught up, because you cannot ask me “What is Valbona?” without asking also, for me, What is Tropoja?  What is Albania?  Why do you love them so?  Oh my dear.  Valbona is a place from a dream.  A place so beautiful you couldn’t even imagine it – you couldn’t create it if you tried. But I don’t just love Valbona, this impossible place of beauty, where we poor humans can touch the hand of god, who we have to believe exists, if only to have created this.  I love Tropoja. I love the people who are so good and kind, and have so little, but their pride.  But that pride is so strong, that it makes them more generous than the richest princes.  To live in Tropoja is to live with kings.   And queens.  Until now, Tropoja had only two assets:  their land, and their isolation.  The isolation is gone now, blown to smithereens, and so the bulldozers move in.  Whether it’s hydropower, or chrome mining . . . or god knows what comes next.  But none of it is benefitting them, these kind good people who still live with 79% unemployment, public assistance amounting to 29euro per month for a family, and no hope of anything better.  And yet they give.  And I love Albania.  This country of kind people, these good people who deserve something better. This country which could be so rich and proud.  You have so much to be proud of Albania.  You have never been like other states – greedy and violent.  While you are the fiercest fighters in the world, you historically have never tried to take more than what is yours . . .

But I digress.

I believe in a better Albania.  And having been so lucky to be accepted here, I will fight to my last breath for this country which I love.  And so I think my friends here, the people of Tropoja, will allow me to say on their behalf, we will not stop.  It is wrong what is happening in Valbona, and it was wrong, what happened in Tirana today.  You have not fooled us, you have not distracted us. You have certainly not defeated us.  You have merely proven us right in our determination.  And: You were warned.

Report on 27 October Events in HPP Fight

30 October 2017, Tirana Albania
Lawsuit over Hydropower in Valbona Valley National Park
12th Hearing Continues Judicial Arguments
High Number of Local Plaintiffs Attend and Speak Out
13th Hearing to be held 1 November, 15:00

The twelfth hearing in “27 inhabitants and NGO TOKA vs. Albanian Ministries” took place on 27 October at 10:00 am in the Tirana Administrative Court of First Instance.

The hearing consisted mainly of the plaintiff’s lawyers responding to a list of 16 questions posed by the Gener-2 lawyer at the previous hearing.  Somewhat oddly, the developer’s lawyer began by questioning once again against the locals’ Aarhus rights and the legitimacy of TOKA, despite the fact that the court ruled in favor of plaintiffs’ rights at the 4th hearing held on 2 June.  Their argument seems to consist mainly in the idea that the government represents the people, and therefore whatever they decide to do de facto is in the best interest of people so the people shouldn’t complain.  There was a curious point when the Gener-2 lawyer asked “Does the government have to tell TOKA (and people) everything they do?” to which it seems the right to information would necessitate an answer:  “Yes.  When what they are doing affects the people.”  There was then some increasingly heated back and forth between plaintiff and defense attorneys regarding the terms of the protected areas law, plaintiffs’ lawyers insisting on the clear legal guidelines of forbidden activities inside a National Park in effect at the time, and the developer’s lawyers responding that as permission had been given, clearly these WERE permitted activities . . . no matter what the law says.  When asked point blank if they were using explosives, the developer’s lawyer said “The tunnels are being opened with machines, and no explosives are used.”

Since in fact Valbona and particularly Dragobia have been rocked by explosions day and night since April 2017, this perhaps not surprisingly led to one outraged local asking permission to address the court.  Mr. Shkelzen Metaliaj approached the microphone and began a thundering and emotional denouncement:  “I have sat here for one and a half hours and have never heard so many lies in my life!” He proceeded to deliver a moving description of what life has been like in the valley, with glasses shaking on tables, no one able to sleep for more than a few hours per night, with rocks falling on cars and cement trucks nearly running down school children.  While not strictly in line with the plaintiffs’ chosen legal strategy – ie, attacking the legality of the concession contract – the appeal for justice nonetheless provided a heartfelt and useful dose of reality to the proceedings.

It is also interesting to note that it was confirmed by the KKT lawyer that although KKT has convened, the construction permit of Dragobia Energy has still not been renewed.

Many observers find it odd that despite the fact that the lawsuit was lodged against several government ministries, it is the developer’s lawyer who is making most of the arguments, with the KKT and Ministry of Energy lawyers remaining almost entirely silent.  The developer Gener-2 and Dragobia Energy ShPK were included at their request, initially as 3rd parties and then asked to be made defendants.

A further encouraging sign is the increasing number of locals and plaintiffs who are attending each hearing.  The first judicial hearing (the 11th hearing) on 10 October was attended by 5 local plaintiffs in addition to TOKA president.  This second judicial hearing was attended by 8 local plaintiffs and TOKA.  The number of local plaintiffs is expected to increase at the 13th hearing, to be held on 1 November at 15:00, with some locals asking if they can now add their names.

Immediately after the hearing, a symbolic demonstration was held outside the offices of IKMT, the Albanian territorial inspectorate responsible for ensuring that any construction work has the correct permits in force, and which should stop any construction found to be proceeding without valid permits.  A large poster displaying the laws being contravened was posted at the IKMT entrance, with pictures of the construction in Valbona.  The hearing and protest were reported by Voice of America television.

Contact:            Catherine Bohne, TOKA

+355 (0)67 30 14 638, catherine@journeytovalbona.com

Lavdosh Ferruni, Medisi.al

+355 (0)67 46 67 312, Lavdoshferruni@gmail.com

Protest at IKMT Offices in Tirana, 27.10.2017

FUNERAL ANNOUNCEMENT

We inform you that “IKMT” has departed from life, death being due to advanced inactivity.  Therefore we gather together lighting a candle in front of this institution.

The purpose of the protest is to draw attention to the failure of IKMT to halt the work of Hydropower Construction on the Valbona River.

FRIDAY, 27 OCTOBER 2017 from 13:00 to 15:00

In front of the offices of the National Territorial Inspectorate

The legal basis follows (for those of you who read Albanian!)

20 October 2017 : Current state of hydropower development in Valbona

This video was shot and edited on 20 October 2017, and shows not only images of the massive damage being done by the hydropower development, but highlights the message of local people.

Text of the Video in English:

  • Article 6
    National Park
    Large areas of unique national and international value, the majority area of which are natural ecosystems minimally influenced by human activity, where plants, animals and the natural and physical environment are of particular scientific and educational importance, are declared a national park.

 

  • You can’t make a hydropower without water. We don’t need to change the path of the river from its natural course. The beauty god made we need to leave alone. There is no need for other people to come and say it’s for the good of the state to do this. These are private companies, this Ulaj (Gener-2) is nothing to me. He’s working for his own interest. How many people come to the river between the Bridge of Shoshan and here? All summer it is full of people; women and children playing in our river. If they kill the river where will they play?

 

  • The people of Valbona have, for I don’t know how long, had no way to earn money. The profit from tourism is crucial here as it is from this that they can find a way to feed their children and families, to live and move forward. There’s no other way of earning money here. Whereas the Hydropowers aren’t employing anybody. Nobody from Valbona is working there, just one night watchman. Over 30 families in Valbona, and only one person is employed.
    Tourists come here for Valbona, and Valbona the way god made it.

 

  • The documentation for the development was approved as if 20 people were in favour. In fact some of these people were not alive at the time; they used falsified signatures. Actually, 95% of the inhabitants of Dragobi and the rest of the valley are against the development of Hydropower as it would completely ruin the valley. From a National Park, as declared by the government in 1996, it would be destroyed and no longer a tourism zone, but an industrial zone. Please, government: justice. Decide as fast as you can to protect Valbona valley. When you affect the river, you affect the heart of the valley. If you removed the water supply, this rare beauty cannot exist. It is not only in the interest of this community to stop the development, but also for the flora and fauna which would be lost by the removing the river. Therefore, the valley has to be protected.

Valbona: Law & Speculation

Reprinted from Mjedisi.al

 

Valbona: Ligji dhe Spekullimi, by Lavdosh Ferruni (translated by Magdalen Ulyatt)

Valbona residents who are suing the government and the company building a Hydropower (HP) in Valbona have come out in force in Tirana. On Tuesday, 10 October, at the 11th hearing in the case they spoke to media, calling attention to the fact that the Valbona is “groaning” under concrete mixers and shaking from explosions day and night. Many of the residents have no drinking water as the explosions used to open the tunnels into which the river will be re-routed have diverted the underground drinking water supply, and visitors to Valbona will be stunned at the changes in the valley from photos they have seen.

There has been an Albanian law in effect (Law No. 8906, dated 6/6/2002) which theoretically defends protected areas. The lawsuit by the residents of Valbona and the local NGO TOKA seeks to establish precedents for the implementationof Article 6 of this law, which states what actions are, and are not, allowed within a National Park.

The history of the implementation of this law is complicated and paradoxical. When the state and the  construction company come to an agreement they use section of point 3 of this Article, which says that within the protected area may be pursued “other activities that are not explicitly prohibited by point 2 of this Article” after having been granted an environmental permit. This is preceded by point 1 which explains that the National Park is declared to have unique national and international value as it has natural ecosystems that are minimally impacted by human activity, where plants, animals and the natural, physical environment are of particular scientific and educational significance. Point 2, which must be read in relation to point 1, lists only 11 activities that are explicitly forbidden, as examples of the thousands of potential activities which would obviously also be prohibited. Some of these other activities one might consider acceptable, such as distribution of animals and non-native plants or intensive reproduction of hunting animals, and could be open for debate. The law also clearly prohibits the construction of roads, highways, railways, urban areas, high voltage lines and long-stretch oil and gas systems.  It clarifies that even if it is a major work of national interest, the Park should not be touched. Naturally, not all human activities that are prohibited could be included in the list of examples. It is not necessary to say in the law, for example,that it is forbidden to build a nuclear power plant or a garbage incinerator in a National Park, as it is outside the context of point 1; why a National Park area is created. Point 3 lays down certain permitted activities such as those of a scientific, archaeological or palaeontological nature, or temporary storage or use of agrochemicals, and point 4 clarifies that permission from the park administration is required for the passage of pets into the park, the erection of lighting and temporary structures, the collection of medicinal plants or mushrooms, canoeing, or similar activities. Again these points are both preceded by and subject to point 1: all activities within the Park are ultimately governed by the preservation of the ecology for which the Park was declared.

Thus, understanding the law, it is ridiculous even for the layman to hear the Ministry of Energy ask: “Does the law forbid the construction of a Hydropower Plants ( HPP) in a protected area?” To avoid this idiotic question a new law passed this year clearly states that it is forbidden to build HPPs in a National Park.  In fact this should have been unnecessary, as the law was clear before and it is only in the absence of the correct application of the law that it can be endlessly debated. According to this logic, the law would have to be re-written to include every single inappropriate idea, such as the construction of a large resort, as is currently proposed in Divjaka National Park.

The case of the Valbona National Park, where the river would be taken and inserted into tunnels, destroying the local ecosystem which has hitherto been “minimally impacted by human activity,” is an indisputable affront to Albanian law.

Hydropower Fight Update

September 12, 2017

Greetings All!

The ninth hearing in “27 inhabitants and NGO TOKA vs. Albanian Ministries” took place on Monday, 11 September at 14:00 in the Tirana Administrative Court of First Instance on Rruga Don Bosko.  This was the first hearing after the summer break for courts, and was to have been the first “Judicial Hearing,” at which we move beyond procedural issues to get to grips with the actual legal arguments against the concession contract of the Dragobia Energy Hydroelectric Project.  As it turned out however, after registering who was present, the court announced that one of the 3 judges assigned on 20 July had requested to be absented from the process due to an unspecified “conflict of interest,” and that the court had not yet decided whether to validate this request or not.  The next hearing was scheduled for 26 September at 11:30 in the morning.

It is of course disappointing to see how easy it has been for the defendants, led I think mainly by the Gener-2 lawyer, to use court processes to delay the case, while construction continues as fast as it can in Valbona.

We note that the ninth hearing was attended by the head of Brecani security, the contracted company responsible for delivering what we could call “personal messages” about Gener-2’s unhappiness with the court case.  Usually rather unpleasant messages (taken subjectively).

While we continue to follow the law with this court case, we are considering taking further measures.  In June 2017, after learning in court that the developer had been operating without a valid construction permit since May, we filed a request to regional and national inspectorates to visit the works and determine the truth of the situation.  Should the developer be found to be working without valid permits, we requested they exercise their authority to stop the work.  The only response to date has been from one inspectorate, who reported that “the works have a valid environmental permit” without any reference to the question of their construction permit.  Thus we are now finding funding to lodge suit against the inspectorates, for failing to perform their due responsibility and function.

While it is somewhat disheartening that such cavalier disregard of legal process is still possible in Albania today, we feel it is therefore all the more important to pursue – doggedly if necessary – some consequences for the agencies in question.  At the very least, the struggle in Valbona should help to set better precedents, moving forward.

As for what is happening, in situ, in Valbona . . . it isn’t good.  Excavation of the Valbona River portion of the HPP has begun.  For the past month, a fleet of massive dump trucks have been moving up and down the valley, often in convoys, dumping all the material (rocks, boulders and sand) excavated in flood plain of Valbona Qender (the “center” of Valbona), so that what ought to be the flower of Tropojan tourism now looks more like something from the Syrian war.  None of this is mentioned in the planning documents submitted to the National Environmental Agency, summarized in the Environmental Impact Statement.  Local gossip says that one man, who claims that his historical family land is located in the riverbed (affected by the floods of some 100 years ago) has given permission for them to dump the material on “his land.”  No one is happy about this, but no one knows what to do about it.

The bright spark on the horizon at the moment are the negotiations between Gener-2 and TOKA facilitated by a dedicated group of embassies and foreign authorities.  Thanks to this effort, we have had the opportunity for Gener-2 and TOKA (Goliath and David) to meet in person. Gener-2 has offered to make their – until now private – studies and reports available to TOKA for analysis. We hope this process will move forward in the following days.  Should the reports show that the developer has concrete and practical plans for minimizing damage to the National Park, I suppose we’ll all feel better.  If, however, their research does not hold up to the standards they claim, then we have better arguments for pressuring the Albanian Ministries to intervene.

That, I’m afraid, is all the news from Valbona.

Thank you as ever for your support.

Sincerely,

Catherine for TOKA, and Valbona.