COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

MALAYSIA

Malaysia - Standing, EIA

KAJING TUBFK & ORS v. EKRAN BIID & ORS

ORIGINATING SUMMONS NO-55 (21 JUNE 1995) HIGH COURT (KUALA LUMPUR) JAMES FONG J. 19 JUNE 1996

Introduction

The plaintiffs claimed that they have been deprived of their right to obtain a copy of the EIA relating to the construction of the Bakum Dam and to be heard and make representations before the EIA is approved. Under the Environment Quality Act of 1974 activities prescribed by the Minister in charge of environment protection can only be carried out with the approval of the Director General of environment quality, the 2nd defendant. The Guidelines approved by the D-G requires a detailed EIA prepared by the project proponent to be made available to the public and the public afforded an opportunity to comment on the proposed project to a review panel. The Environment Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 lists power generation and transmission activities involving dams and hydroelectric power as prescribed activity. However, on 27 March, 1995, the Minister issued an Order under the EQA declaring that the prescribed activities shall not apply to Sarawak, where the project in question is to be constructed.

Accordingly the Plaintiffs sought a declaration that before the 1st defendant carries out the prescribed activity it has to comply with the Environment Quality Act, including S.34A and/or the Guidelines prescribed by the 2nd defendant under S.34A of the Act, and the regulations made thereunder.

Legislative Framework

Environment Quality Act of 1974 (EQA) S.34A.
Environment Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987, No: PU(A) 362/87 (PU (A) 362) -13.b.
Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order 1995 No: PU(A) 117.
Natural Resources Ordinance- S. 11A(1).
Natural Resources and Environment (Prescribed Activities) Order 1994.
Interpretation Act 1948/1967 -S 20.

Held

On the question of locus standi the Court held that though the plaintiffs were only three of a community of 10,000, this did not in itself disentitle them to the relief claimed.

The Court held that the process in the Guidelines made in terms of s.34 A (2) of the EQA concerning the Environmental Impact Assessment and public participation as set out in paragraphs 1.4.5., 1.6.1, 3.4.7, and 4.5 is mandatory. Accordingly, the entitlement to a copy of the EIA and public participation in such proceedings becomes a right. In this connection the Court stated "The EQA was enacted to be applicable to the entire nation. Subsidiary legislation was permitted to give full effect to the EQA. Under the guidelines prescribed under the EA itself a valid assessment of an EIA prepared by the project proponent...cannot be made without some form of public participation...For this is a right vested with the plaintiffs..." The Minister's order is a removal of the entire rights of the plaintiff to participate and give their views before the EIA is approved.

Accordingly, the Court declared that the Environment Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987, is invalid and directed the 1st defendant to comply with the requirements of EIA and the Guidelines.

Cases Cited

Government of Malaysia v. Lim Kit Siang (1988) 2MIJ 12.
Tan Sri Hj Othman Saat v Mohamed Bin Ismail (1982) 2MLJ 177.
Ibeneweku v. Eqbuna (1964) 1 WLR219.
Lonrho Ltd & Anor v Shell Petroleums Co. Ltd. & Anor (No.2)(1982) AC 173.
Saijah bte Ab-Lateh v Mohd Irwan Abdullah (1996) 1 SLR 63
Petalin Tin Bhd v Lee Kian Chan & others (1994) 1 MLJ 657
Gul-Marin & Doan Inc. v George Town Textile Mfg Co 249 SC 561, 155 SF2d618,621.
Gouriet v Union of Post Office Workers & Ors (1977) 3 A11 ER 70)
Howe Yoon Chang v Chief Assessor Property Tax Singapore (1978) 2 SJ 87
Chief Assessor Property Tax Singapore v. Howe Yoon Chang (1979)1 MLJ 207
R v. Secretary of State for the Home Department ex parte-A1-Mahdarni (1989)1 AH ER 777.
Wong Bot Heng & Anor v Kerajaanen Malaysia(1992) 2 MLJ 885
Phillips v Eyre (1870) LR 6 QB1
Penang Development Corp. v Tech Eng Hvat & Anor (1993) 2 MLT 97
Yamaha Motor Co. Ltd. v Yamaha Malaysia Sdn Bnd & Ors (1983) 1 MLJ 213.
Hanson v. Radiff Luban Urban District Council (1992)2 Ch. 490
Brickfield Properties v. Newton (1971) 3 A11 ER 328