Country
Malaysia
Sources
InforMEA
Tagging
Declaratory Relief, Environmental Impact Assessments, Remedies, Constitutional, Injunctive Relief, Standing, Land Tenure, Jurisdiction, Torts, Evidence
Abstract
These appeals arose from a judgment of the High Court on the same subject matter. The respondents' complaint related to the Bakun Hydroelectric Project. The whole of the affected area belonged to the State of Sarawak, though about 10,000 natives were in occupation of it under customary rights. The respondents were three such natives and they and their ancestors had, from time immemorial, lived upon and cultivated the land in question. While the project would deprive them of their livelihood and their way of life, all those affected by the project would be resettled by the state government and their customary rights would be extinguished in accordance with the Land Code (Sarawak Cap 81). In the High Court, the respondents applied for declarations that the Environmental Quality (Amendment) Order 1995 was invalid and that before Ekran Bhd carried out the project, it had to comply with the Environmental Quality Act 1974 ('the EQA'). The Amendment Order had retrospectively excluded the operation of the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 ('the 1987 Order') to Sarawak. They complained that they were not given a copy of the environment impact assessment report on the project and had been deprived of procedural fairness in that they were not given an opportunity to make representations in respect of the impact which the project would have upon the environment, before the decision to implement the project was made. The High Court granted the declarations. The Director General of Environmental Quality, the Government of Malaysia, the Natural Resources and Environment Board of Sarawak, the Government of Sarawak and Ekran Bhd appealed. The appellants argued that although the EQA was expressed to apply throughout Malaysia, it did not extend to the project because the land in question belonged to the State of Sarawak, with respect to which Parliament had no legislative authority. In fact, Sarawak had its own environmental law in the Natural Resources Ordinance 1949 ('the Ordinance'). Article 74 of the Federal Constitution read together with the Ninth Schedule placed land as a legislative subject in the State List. 'Environment' was not specified as a separate legislative subject because it was a multi-dimensional concept that was incapable of having any independent existence. The appellants contended that since the project was in respect of land and a river that were wholly within Sarawak, it was the Ordinance and not the EQA that applied. . The issues to be decided in these appeals were: (a) whether the EQA applied to the project; and (b) whether the respondents had locus standi to bring this action. The Court held, allowing the appeals: Since the 'environment' in question, by reason of item 2(a) of List II and item 13 of List IIIA of Sch 9 to the Federal Constitution, lay wholly within the legislative and constitutional province of the State of Sarawak, that state had exclusive authority to regulate, by legislation, the use of it in such manner as it deemed fit. The EQA thus did not apply to the environment that was the subject matter of this case and the respondents had no vested or other interest under the EQA upon which the Amendment Order could have any effect. In any event, the respondents lacked substantive locus standi, and the relief sought should have been denied because: (a) the respondents were, in substance, attempting to enforce a penal sanction; (b) the complaints advanced by the respondents amounted to deprivation of their lives under art 5(1) of the Federal Constitution. Since such deprivation was in accordance with the law, ie the Land Code (Sarawak Cap 81), they had on the totality of the evidence suffered no injury and there was thus no necessity for a remedy; (c) there were persons, apart from the respondents, who were adversely affected by the project. There was no special injury suffered by the respondents over and above the injury common to others. The action commenced by the respondents was not representative in character and the other affected persons were not before the court; and (d) the judge did not take into account relevant considerations when deciding whether to grant declaratory relief. In particular, he did not have sufficient regard to public interest. Additionally, he did not consider the interests of justice from the point of view of both the appellants and the respondents. Under the applicable Ordinance there was no requirement for the respondents to be supplied with copies of the environmental impact assessment report. As such the respondents had no cause of action in this appeal. Even if s 34A of the EQA applied, the respondents would only be given copies of the report if they had asked for it. There was no accrued right that the report must be distributed to the public without the public asking for it.