Data source
Date of text
19 Jun 1996
Country
Original language

English

Type of text
National - higher court
Reference number
No. S5-21-60-1995
Court name
High Court (Kuala Lumpur)
Justice(s)
Foong, J.
Sources
InforMEA
Keywords
Access to justice, dam, energy, environmental impact assessment, hydroelectric energy, Public participation, renewable energy

The plaintiffs claimed that they have been deprived of their right to obtain a copy of the EIA relating to the construction of a hydroelectric project in Bakun 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 require 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 includes 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 was to be constructed.
Accordingly the Plaintiffs sought a declaration that before the 1st defendant carried out the prescribed activity it had 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 there under.
On the question of locus standi the Court held that it was necessary that the plaintiffs’ interests were affected substantially or that the plaintiffs had some genuine interest in having their legal position declared. Even 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 emphasized that the plaintiffs were natives to the area affected by the project. They had claimed that their homes and land would be destroyed, their lives uprooted by the project and they would suffer far more greatly and directly than other members of the public. To them, ‘our land and forest are not just a source of our livelihood but constitute life itself, as they are fundamental to our social, cultural and spiritual survival as native people.’ This itself, in the opinion of the court, was sufficient to justify the plaintiffs having a substantial or genuine interest to have a legal position declared.
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 was mandatory. Accordingly, the entitlement to a copy of the EIA and public participation in such proceedings became a right.
In this connection the Court stated that: "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 EIA 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 amounted to 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, was invalid and directed the 1st defendant to comply with the requirements of EIA and the Guidelines.