Transfer of Bakun Dam Environmental Impact Assessment Rule Invalid
6/25/96
*******************************
RELAYED TEXT STARTS HERE:
SAHABAT ALAM MALAYSIA (Friends of the Earth, Malaysia)
25th June 1996, Penang, Malaysia
BAKUN UPDATE
Dear Friends,
RE: BAKUN DAM, Sarawak, Malaysia
Greetings from Penang!
You may have already heard about the major victory that we have had
on Bakun Court Case. We are enclosing a set of the newspaper
clippings on the case.
There is now a serious dispute as to whether the developer, that is
Ekran Berhad, will stop work on the project despite the fact that
the court has ruled that it is illegal to continue work on the
project until EIA approval is obtained from the Federal Department
of Environment.
The Plaintiffs' lawyers are considering the next course of action.
This will depend on what happens in the next few days. We will keep
you posted on the development.
We suggest that groups/individuals send letters to the Malaysian
Prime Minister and Deputy Prime Minister urging that the court
decision should be respected and in view of this, the works on the
BHEP should stop.
Below is the adress of the Prime Minister and the Deputy Prime
Minister:-
1. Datuk Seri Dr Mahathir Mohamad
Prime Minister of Malaysia
Prime Minister's Department
Jalan Dato' Onn
50502 Kuala Lumpur
Tel: 603-2322444
Fax: 603-2329227
2. Datuk Seri Anwar Ibrahim
Deputy Prime Minister
Prime Minister's Department
Jalan Dato' Onn
50502 Kuala Lumpur
Tel: 603-2322444
Fax: 603-2383784
Thank you for your support.
Yours sincerely,
Thayalan Muniandy
Hon. Secretary
ARTICLES FROM "THE STAR"
The Star: 20-Jun-96
Bakun setback Transfer of EIA approval invalid, rules High Court
It (the decision) is purely procedural and specifically purely on
technical aspects and therefore we can remedy that by getting the
procedures correct as advised by the court.
-- Datuk Seri Anwar Ibrahim
We have the power to approve such EIA reports unless such power has
been taken away from us.
-- Tan Sri Taib Mahmud
The court decision does not involve Ekran because it centres on
which government authority has the power to approve the EIA
reports. We will go ahead with the project.
-- Tan Sri Ting Pek Khiing
KUALA LUMPUR: The High Court granted yesterday a declaration which
puts the legality of the RM13.6 billion Bakun hydro-electric
project into question.
Justice Datuk James Foong declared that the Environment Quality
(Prescribed Activities) (Environmental Impact Assessment) Amendment
Order, 1995 -- which provides for the transfer of approval of EIAs
for projects in Sarawak from federal jurisdiction to the state --
was invalid.
The court, in allowing a suit by three Sarawak businessmen, also
granted a second declaration that project developer Ekran Bhd
comply with EQA guidelines before carrying out the project.
"The 1995 Order (made retrospective to Sept 1, 1994) is not about
transfer of a procedure but the extinction of the EQA in its
application on certain material activities in Sarawak," he said.
"While waiting to exercise their rights, and being assured by the
Executive through their leaders, including those directly in
charge, that the relevant procedures of the EQA will be adhered to,
the Minister suddenly strikes a mortal blow by gazetting the 1995
Order," said Foong.
He said the 1995 order removed the entire rights of the
plaintiffs to participate and give their views before the EIA was
approved.
"This court shall not stand idly by to witness such injustice,
especially when the plaintiffs have turned to this institution to
seek redress," he added.
Deputy Prime Minister Datuk Seri Anwar Ibrahim, when approached
by reporters for comment, said the High Court decision would only
be a "procedural problem," and he had directed the authorities
concerned to come up with a solution by next week.
"I don't think this is a big problem as it does not involve
anything fundamental," he said.
In his 44-page judgment, Foong said that it was understandable
why the plaintiffs were aggrieved.
"A valid assessment of an EIA, prepared by Ekran, of the
prescribed activities cannot be made without some form of public
participation.
"This is essential for interaction between people and their
environment and is fundamental to the concept of environmental
impact.
"All they wish is to be granted a right to obtain a copy of the
EIA, be heard and make representation before it is approved. It is
relevant and indeed mandatory for the authorities to hear public
views before granting approval.
"It makes a mockery of the whole issue, to say that the EIA can
be approved first and if the public has any constructive ideas,
they can submit later," he added.
On the retrospective effect of the 1995 Order, Foong said there
was no express provision in the EQA permitting the minister to do
so.
Ekran counsel Muhammad Shafee Abdullah said the company would
appeal.
The Star © Copyright 1996, Star Publications (Malaysia)
Berhad
The Star: 20-Jun-96
Court declares amendment order invalid
KUALA LUMPUR: There are no express provisions in the Environment
Quality Act (EQA) permitting the Minister of Science, Technology
and Environment to amend subsidiary legislation amendments
retrospectively, a High Court ruled yesterday.
Justice Datuk James Foong declared as invalid the Environment
Quality (Prescribed Activities) (EIA Amendment) Order 1995 which
transferred federal jurisdiction of the Environment Impact
Assessment (EIA) for projects in Sarawak to the state.
Foong granted declarations to three Sarawakians -- Kajing Tubek,
39, Tahu Lujah, 70, and Saran Imu, 48 -- in their suit against
Ekran Berhad, the director-general of the Department of
Environment, the Federal Government, the state Natural Resources
and Environment Board and the state government of Sarawak.
"One of the most controversial provisions of this amendment order
(gazetted on April 20, 1995) is that it 'shall be deemed to have
come into force on Sept 1, 1994'," he said.
He said Section 34A of the Act empowered the minister to make
amendments to cater for changes, "but these changes are in
anticipation of the future and not for the past."
If the minister wished to avail himself of the powers of the
Interpretation Act to give effect to the retrospectivity of the
1995 Order, he must say so expressly, said Foong.
He said the nucleus of the plaintiffs' challenge was on the
validity of the procedural aspect of the 1995 Order enactment.
"This does not involve the determination of the jurisdictional
aspect between state legislation and the Federal Parliament
concerning who has the legislative power on various matters, listed
or unlisted in the Ninth Schedule of the Federal Constitution," he
said.
He said the plaintiffs may only be three of a community of
10,000, but numbers was not a criteria for the granting or refusal
of declaratory relief.
"What is fundamental is that the plaintiffs themselves have in
this case suffered specific, direct and substantial damages caused
by the Bakun project," he said.
The court also awarded costs to the plaintiffs.
The Star: 20-Jun-96
It is a procedural problem, says Anwar
KUCHING: Datuk Seri Anwar Ibrahim described the High Court decision
as a procedural problem and has directed the relevant authorities
to come up with a solution by next week.
The Deputy Prime Minister ordered Energy, Telecommunications and
Works Minister Datuk Leo Moggie to convene a meeting between Ekran
Berhad and relevant government agencies soon before submitting the
report to the Cabinet's meeting next Wednesday.
"We respect the decision of the court but I do not see this as a
major problem as it addresses the overlapping of jurisdiction
between the Department of Environment and the Sarawak Natural
Resources and Environment Board, which can be redressed.
"The project will definitely continue but we will determine if
work should be stopped."
Anwar was speaking to reporters after opening the Sarawak
Securities Sdn Bhd new headquarters in Kuching.
He was positive Ekran Berhad would appeal the court decision.
Anwar said the while the court's decision was unexpected, he
would seek the advice of the Attorney-General on its implications.
He said the Bakun project was the first project of its nature
involving Federal and State authorities with apparent overlapping
of authority.
The Star: 21-Jun-96
Solicitor-General: Stop work on Bakun immediately
KUALA LUMPUR: Solicitor-General Datuk Heliliah Mohd Yusof said work
on the Bakun hydroelectric dam project must stop immediately or
else it will be an "outright defiance of the court order."
She said in view of the High Court's declaration on Wednesday
which questioned the legality of the RM13.6 billion project, a
"solution" must first be found before work could proceed.
"Is it prudent on the part of anyone to continue (with the
project) when there is already a court order to invalidate the
process of the Environmental Impact Assessment?
"In any court case when there is an order, there cannot be an
outright defiance of the order," Heliliah said in an interview
yesterday.
The High Court declared that the Environmental Quality
(Prescribed Activities) (Environmental Impact Assessment) Amendment
Order 1995 made by the Science, Technology and Environment Minister
last April -- which transfers the Federal jurisdiction over EIAs
to Sarawak -- as invalid.
Justice Datuk James Foong also declared that Bakun developer
Ekran Bhd must comply with EIA requirements under the Environmental
Quality Act 1974 (EQA) before carrying out the project.
However, Ekran chairman Tan Sri Ting Pek Khiing had said that the
company would go ahead with the project.
The company also filed a notice of appeal at the High Court
registry yesterday against the High Court decision.
Heliliah said possible solutions would have to consider the fact
that the project had started and the need for public participation
in the EIA evaluation.
"It could be a technical and procedural matter to iron out the
problem," she added.
She said Ekran might have to go through the entire EIA process
according to existing laws.
Meanwhile, counsel for the plaintiffs G.S. Nijar said contempt
proceedings would be filed should Ekran defy the High Court order
to comply with EIA requirements.
He said a letter had been sent to Ekran's lawyers instructing
them to advise their client to stop all work on the project.
"Any continuation of any activity of the dam clearly violates the
court order and will undermine the court decision," he told a press
conference.
He said it was unnecessary to file an injunction as the court
declaration clearly stated that the project could not start pending
EIA approval.
He also said Ekran's contract with the ABB Engineering Group
could be held illegal because of the current status of the Bakun
project.
Several conservation groups have also urged the Department of
Environment to issue Ekran with a 'stop work' order.
However, department director-general Tan Meng Leng said the
department would study the High Court judgement and consult the
Attorney-General before deciding what course to take.
"The department respects the decision of the court and will take
the cue from there,' he told reporters after attending a Public
Services Innovation Exhibition in Kuantan.
Attorney-General Tan Sri Mohtar Abdullah also declined comment,
stating that he had yet to see the written judgement.
The Star: 21-Jun-96
Ekran files appeal against decision
By Esther Ng
KUALA LUMPUR: Ekran Berhad, the developer of the Bakun
hydroelectric project, filed yesterday its notice of appeal to the
Court of Appeal against a High Court decision affecting the
project.
Ekran filed the notice of appeal and a letter of urgency through
lawyer Muhammad Shafee Abdullah at the High Court registry in Wisma
Denmark.
On Wednesday, High Court judge Datuk James Foong granted a
declaration that Ekran comply with the Environment Quality Act
1974, before carrying out construction of the project.
This included Section 34 (A) of the Act and/or guidelines
prescribed by the Director-General of the Department of Environment
under the Act.
He declared as invalid the Environment Quality (Prescribed
Activities) (EIA Amendment) Order, 1995, gazetted by the Minister
of Science, Technology and Environment which transferred the
approval of EIA for projects in Sarawak, from federal jurisdiction
to the state.
The suit was brought by Sarawakians Kajing Tubek, 39, Tahu Lujah,
70, and Saran Imu, 48, against Ekran, the DOE Director-General, the
Federal Government, the Sarawak Government and state Natural
Resources and Environment Board.
Bernama reported that Energy, Telecommunications and Posts Minister
Datuk Leo Moggie would call a meeting of relevant Sarawak and
federal officials, including those of the Department of Environment
and the Attorney-General's Chambers, in Kuala Lumpur today.
"It will be a preliminary discussion while a more detailed one
will be arranged, if necessary, by next Tuesday," he was quoted as
saying in Sibu.
He expressed confidence that the technical procedural problem
over the Bakun EIAs could be resolved and he foresaw no difficulty
in coming up with the report and recommendations on the next course
of action.
"It is purely a technical procedural matter of the Environmental
Impact Assessment reports," he said.
The Star, 22 June 1996
Comply, says A-G Bakun case judgment
'is proper and sound'
KUALA LUMPUR: The High Court judgment in the Bakun case should be
followed and upheld, Attorney-General Datuk Mohtar Abdullah said
yesterday.
"It is a proper judgment, a sound judgment. We may not agree with
it. Whether we want to appeal or take further action on that is
something that we have to consider, after looking at the law and
the aspect of this," he said.
Mohtar, who was speaking to TV3, said as far as the judgment
stood, it was a good judgment that had to be complied with.
Solicitor-General Datuk Heliliah Mohamed Yusof said the court's
decision stated the legal position.
Asked whether the declarations granted by Justice Datuk James
Foong on Wednesday were as good as an order, she replied:
"Why shouldn't it be?"
Officials from the Department of Environment, Science,
Technology and Environment Ministry, Finance Ministry,
Attorney-General's Chambers, Sarawak Natural Resources and
Environment Board and the Energy, Telecommunication and Posts
Ministry discussed the court decision yesterday.
The High Court ruled that the Environment Quality (Prescribed
Activities) (Environmental Impact Assessment) Amendment Order 1995
-- which transferred Federal jurisdiction over EIAs to Sarawak --
was invalid.
The court, in allowing a suit by three Sarawakians, also granted
a second declaration that project developer Ekran Bhd comply with
EIA requirements under the Environmental Quality Act 1974.
Ekran has filed an appeal against the judgment.
G.S. Nijar, counsel for the three, told The Star:
"We are grateful to hear that the honourable Attorney-General has
now stated clearly that the court decision has to be obeyed."
"Ekran must now give us an assurance through their solicitors or
make a public declaration disavowing their earlier assertions that
they would continue with work.
"We will monitor whether Ekran is continuing with activities on
the site.
"If there is firm evidence (of activities), we will institute
contempt proceedings against Ekran," he said.
A spokesman for the Energy, Telecommunication and Posts Ministry
said the Government was expected to decide the next course of
action on the RM13.6 billion hydroelectric dam project after
Wednesday's Cabinet meeting.
"The minister (Datuk Leo Moggie who chaired the meeting) is
expected to brief the Cabinet next week and will most likely make
an announcement then," she said.
Meanwhile, earthwork to divert the river for dam construction and
for the access road was continuing as usual, said Member of
Parliament for Hulu Rejang Billy Abit Joo.
Billy, a member of the Bakun Development Committee (BDC), said
tenders to clear the resettlement areas and construction of access
road would be out soon.
Reuters reports that Ekran Bhd would proceed to sign an agreement
with Asea Brown Boveri AG in August.
ABB is leading a consortium which has been awarded the
engineering, procurement and construction contract for Bakun.
It quoted company lawyer Mohamed Shafee as saying that the ruling
does not affect activity at the dam site since work can only begin
after an agreement is signed.
Ekran executive chairman Ting Pek Khiing had said that the court
decision would not hamper work on the dam as it did not cancel the
project.
He said it was a technical issue on the transfer of power from
the Federal to the state government to approve the EIAs.
"The work we are doing now does not come under the guidelines of
the EIA report," he said.
Sunday Star: June 23, 1996
Work on dam goes on A-G does not recommend otherwise: Anwar
By Shamsul Akmar, James Wong, Shashi Kumaran and Mas Elati
KUALA LUMPUR: Datuk Seri Anwar Ibrahim said preliminary work on the
Bakun hydro-electric project can go on.
Expressing a stand similar to the one taken by Sarawak Chief
Minister Tan Sri Abdul Taib Mahmud in interpreting Wednesday's
court ruling, he said: "As for now, work can proceed."
The Deputy Prime Minister said the report by Attorney-General Tan
Sri Mohtar Abdullah to the Government did not give any definitive
recommendations on whether work should go on or stop.
He said the report stated that the court ruling should be respected
but also pointed out that the court did not order work to be
stopped.
"Our priority, based on the report, is to resolve technical
problems following the court decision," he said after attending the
China National Song and Dance Ensemble Charity Show at the Putra
World Trade Centre here last night.
Anwar, who chairs the Cabinet committee on Bakun, had received the
report yesterday morning.
In KUCHING, Taib said that preparatory work on the dam would
continue.
"As the court did not give any order to stop work, which was
unusual, the project would go on in accordance with the conditions
under the law."
He said what he understood from the judgment was that the exemption
given by the Science, Technology and Environment Minister was not
valid because it was retrospective.
"The High Court evaded the issue of who had the power to approve
the EIA report on Bakun," he added.
High Court judge Datuk James Foong declared on Wednesday that the
Environmental Quality (Prescribed Activities) (Environmental Impact
Assessment) Amendment Order 1995 -- which transferred federal
jurisdiction over EIAs to Sarawak -- was invalid.
He also declared that Bakun's developer, Ekran Bhd, must comply
with EIA requirements under the Environmental Quality Act 1974
(EQA) before carrying out the project.
Describing the issue as a "technical problem," Taib maintained that
Sarawak had the legal powers under the Natural Resource and
Environment Ordinance since 1949 (amended in 1993) to deal with EIA
approvals.
"Unless there is a constitutional means of taking that power away
from the state, we assume that the power is still there," he said.
Taib said the court did not order the EIA reports to be approved by
the Department of Environment.
Earlier yesterday, after the handing-over ceremony of keys in a
public housing project in Jelatek, Kuala Lumpur, Anwar said: "To
stop the project is not as easy as stopping a lorry which you can
halt immediately.
"There are other facilitating jobs on the project which may have to
go on even if the stop-work order is invoked," he added.
Anwar said agreements to be concluded between Ekran and Tenaga
Nasional Bhd over power supply from Bakun would go on as scheduled.
"We believe the legal implications from the court decision on the
project will be made clear in a few days and we should be able to
see how the project proceeds," he added.
When approached by reporters at his office, the Attorney-General
said the Government had not ruled out the possibility of appealing
against the decision that the amendment to transfer EIA approval to
Sarawak was invalid.
Mohtar said he was taking into account all circumstances to
determine if this was an appropriate case for the Government to
make an appeal.
"We will consider whether or not we will appeal on behalf of the
Department of Environment and the Government.
"That is why I have to talk to everyone concerned and look at the
judgment and its implications under the law."
He added that the Sarawak government might also file an appeal.
Asked if the Bakun project could go on if there was no order to
stop work, Mohtar said he did not know.
"You have to look at the provisions of the law to see if a person
is breaking the law or a court order and check the consequences,"
he said.
Sunday Star: June 23, 1996
Fighting for a right to be heard
Time will tell whether it was a transient victory for the three
Sarawakian natives in the Bakun case. TAN CHENG LI and SHAILA KOSHY
look into the current confusion over the status of the Bakun
Hydro-electric Project and what the recent High Court decision
means for environmental law.
THEY went against the odds -- not to stop the Bakun Hydro-electric
Project (Bakun) but for a declaration that they had a right to be
heard before the project started.
All the trees in the affected area had been felled but the land
was as yet unsubmerged and Kajing Tubek (pic), Tahu Lujah
and Saran insisted on enforcing their rights under the
Environmental Quality Act 1974 (EQA).
They did not object to the project but to the transfer of federal
jurisdiction for Environmental Impact Assessment (EIA) in Sarawak
to the state which took away their right, under the EQA.
Under the EQA, they have a right to a copy of the EIA and a right
to give their views before the EIA was approved.
And their right to be heard was declared by High Court Justice
Datuk James Foong.
The most important point of Foong's decision would be that of
upholding the right of those affected by a project to obtain a copy
of the EIA, be heard and make representation before the EIA is
approved.
Foong allowed the declaration that the Environment Quality
(Prescribed Activities) (EIA) Amendment Order 1995 which
transferred jurisdiction of EIA approval from federal to the state,
was invalid.
For Kajing, 39, the judgment means one thing -- an opportunity
for the villagers to discuss the project.
"They never asked for our views. It was difficult to discuss with
the people building Bakun, the Government and Ekran," he said.
"We tried to find ways to have discussions but could not. So we
decided to go to court and we are happy now that the court has
sided with us."
Like many of the 10,000 indigenous people in Belaga affected by
the project, Kajing feared that the proposed resettlement might be
too small.
"If possible, don't do the project. We will be disappointed if
the project continues because we will lose our land, our houses and
our way of life will disappear.
"But if it is the wish of the Government to do it, we hope they
will consider our views because we will be the ones facing
difficulties."
The initial euphoria over the decision quickly dissipated
however, as confusion arose as to whether the declaration meant
that Ekran should stop the project.
Bakun critics said the invalidation of the 1995 Order rendered
the approval of the three EIAs by the Sarawak National Resources
and Environment Board (NREB) null and void.
They said the declaration 'to comply with the EQA' would mean
that the whole EIA process will have to start from scratch. The EIA
report will have to be submitted to the DOE, publicly displayed and
reviewed by an expert panel.
Ekran contends that current work -- for an access road, tunnels
to divert a river to the reservoir site, and preparation of the
resettlement site -- does not come under the guidelines of the EIA
report, adding that clearing forest land for the dam had not begun.
M. Thayalan, one of the counsel for the plaintiffs, said: "Ekran
has to comply with the EIA requirement until the court decision is
declared otherwise.
"If DOE has any respect for its own authority, it should
immediately instruct Ekran to stop work and submit the EIAs."
To date, however, there is no such order and DOE is still
awaiting the advice of the Attorney-General's Chambers.
Would there have been less confusion if the court had ordered
injunctions instead of declarations?
A senior lawyer said the Government Proceedings Act did not
allow injunctions against the Government.
"We follow the law in England where injunctions are not granted
against the Government on the trade-off that the Executive comply
with a declaration," he said.
"Once the legal position is declared by the court, all the
affected parties must comply.
"Declarations are not made for fun and the Executive must set the
example by complying."
He said it would be difficult to seek an injunction against Ekran
because the plaintiffs would have to give an undertaking for
damages which would run into billions of ringgit.
Bar Council secretary T. Thomas declined to comment on the
controversy.
To environment groups, the decision is a ray of hope -- that the
RM13.6 billion project could now be subject to scrutiny reserved
for mega projects.
Worldwide Fund for Nature (WWF) conservation director Dr Isabelle
Louis said the legality of the Bakun EIA process had been in
question since February 1995 when the reports were broken up into
four parts.
"The EIA process was subsequently shown to be a farce when the
DOE powers were transfered to NREB."
Malaysian Nature Society president Datuk Dr Salleh Mohd Nor said
the judgment indicated that the EIAs were submitted and approved
with no regards for the mechanisms which safeguard public interest.
"It is in the best interests of the nation that new EIAs be
submitted for review to the DOE in the proper manner, involving
public accessibility and consultation," he added.
Does the judgment hinge on a "technical" issue? One analyst said
it would, at the most, pose a headache for Ekran.
The first executive response came from Deputy Prime Minister
Datuk Seri Anwar Ibrahim, who chairs the Cabinet Committee on
Bakun.
He said the judgment dealt with procedures and the overlapping
jurisdiction between the DOE and NREB.
"But we cannot frustrate the implementation of the project purely
on a technical judgment."
He said the project would continue and instructed all agencies to
co-operate with Ekran to avoid delaying the project.
Counsel G.S. Nijar argued that Foong has stated clearly that the
1995 Order, a subsidiary legislation, was invalid as it
extinguished rights in the parent EQA.
Foong had said "the amendment is not about a transfer of
procedure, but the extinction of the EQA in its application on
certain material activities in Sarawak ... where a right to
prosecute an action exists as in this case for the plaintiffs, it
is no longer procedural but substantive."
"Any suggestion that the new process ordered by the Judge to be
complied with by Ekran was a mere formaility is clearly
unfortunate. It is against the Act which vests independent
discretion on the D-G," said Nijar.
Thayalan added: "It is presumptuous and contemptuous to say the
decision is only a temporary hitch ... one will be assuming that
DOE is merely a rubber stamp."
He said the judgment placed the whole project on a different
playing field altogether.
"There will be new actors and players as the EIA process at the
federal level will give more opportunity for people to scrutinise
the project, perhaps even entitle people to see all the feasibility
studies done earlier.
"And any decisions on the EIAs will have to consider the views of
the review panel."
While approval under federal law requires public participation,
that under Sarawak law does not.
Foong pointed out: "This difference may change the whole course
of things as input through public participation as provided for by
the guidelines may cause the approving authories under the EQA to
take an entirely different cause of action, and to impose certain
conditions that may be beneficial to the project and the public as
a whole."
But Ekran executive chairman Tan Sri Ting Pek Khiing said the
court decision would not hamper work on the dam as it did not
cancel the project.
He said it was a technical issue on the transfer of power from
the federal to the state government to approve the EIAs.
"The work we are doing now does not come under the guidelines of
the EIA report," he said, adding that it only had to re-submit the
EIAs and get them approved.
This despite Attorney-General Tan Sri Mohtar Abdullah's
statement on Friday that the High Court decision was a sound and
proper judgment and should be followed and upheld.
Kajing, Tahu and Saran have done what they can. So has the court.
It is up to the DOE now to settle the issue pending Ekran's
appeal.
The Star: 26-Jun-96
Sarawak to file appeal against ruling
KUALA LUMPUR: The Sarawak Government and its National Resources and
Environment Board will file a notice of appeal in the Court of
Appeal here this week against the recent High Court judgment on the
Bakun hydro-electric project.
This was confirmed by the state attorney-general Datuk J. C. Fong
following a meeting with Energy, Post and Telecommunications
Minister Datuk Leo Moggie and representatives of the Science,
Technology and Environment Ministry and the Solicitor-General's
office yesterday.
The High Court ruled last week that the Environment Quality
(Prescribed Activities) (Environmental Impact Assessment) Amendment
Order 1995 -- which exempts Sarawak from federal EIA laws -- was
invalid.
The court also granted a second declaration that Ekran comply
with EIA requirements under the Environment Quality Act 1974.
All the officials maintained a wall of silence regarding the
meeting and recommendations made.
Ekran Bhd executive chairman Tan Sri Ting Pek Khiing, who met
ministry officials before the meeting, said that statements, if
any, would only be made after today's Cabinet meeting.
In MULU, Chief Minister Tan Sri Abdul Taib Mahmud said the state
had the right to allow the construction work on the dam to proceed
as the High Court did not declare the project invalid.
"The judgment only states that the (EIA Amendment) Order made by
the Science, Technology and Environment Minister was invalid as it
was done retrospectively," he told reporters after opening a
regional symposium on nature tourism at the Royal Mulu Resort here.
Taib said the state government's view was that powers over
environmental matters and natural resources such as rivers, forests
and land, belonged to the state.
"The state has residual power over these areas as they are not
mentioned in the state, federal or common lists under the
Constitution."
Taib also said the court did not state that Sarawak laws (on
residual power) were invalid nor did it dealt with the issue of who
had powers over Bakun.
He also pointed out that the Sarawak Natural Resources and
Environment Ordinance was passed in 1949, earlier than the federal
law.
"But in order to prevent duplication, the Federal Minister (Law)
made the order to exempt Bakun from the Federal laws," he said.
Taib said Sarawak did not have laws on other areas related to the
environment, such as air pollution, because it did not possess the
machinery and scientists to supervise or enforce the laws.
"But we are the experts in dealing with natural resources because
land, rivers, mountains and forests and natural resources come
under the state purview."
The Star: 27-Jun-96
Bakun appeal ;Federal or state law? Govt to seek clarification, says
Moggie
KUALA LUMPUR: The Government will file an appeal against the recent
High Court judgment on the Bakun hydroelectric project and to
clarify whether the project comes under the jurisdiction of a
federal or state law.
Energy, Telecommunications and Post Minister Datuk Leo Moggie
said the Cabinet decided on this action yesterday to enable the
project to be implemented with minimum delay.
Attorney-General Tan Sri Mohtar Abdullah said the appeal would be
submitted to the Court of Appeal within the week.
Meanwhile, the three Sarawakians who had obtained the High Court
declaration filed a leave application yesterday for an order to
commit Ekran Bhd executive chairman Tan Sri Ting Pek Khiing to
prison for contempt of court.
Ting and Ekran were said to have continued construction work on
Bakun without first complying with Section 34A of the Environmental
Quality Act 1974 (EQA) as declared by the court and the former had
allegedly "scandalised" the court by reportedly stating "Why? Why
stop work?"
Kajing Tubek, Tahu Lujah and Saran Imu also filed an application
for an injunction restraining Ekran, its agents or servants from
carrying on construction activities until the company complied with
the Act.
This included the three Sarawakians' right to participate and
give their views before the Environmental Impact Assessment (EIA)
for the project was approved.
Last week, the High Court had ruled that the Environment Quality
(Prescribed Activities)(EIA) Amendment Order 1995 -- which exempts
Sarawak from the Federal EIA laws -- as invalid.
It had also declared that Ekran must comply with EIA procedures
under the EQA before it began work on the project.
Asked about the plaintiffs' application at a press conference
yesterday, Moggie said it would not alter the Government's
decision.
He said the Cabinet, after considering the memorandum by a
Special Committee set up to deliberate on the court judgment,
concluded that the judgment did not invalidate the Bakun project as
it only declared that Ekran must comply with the EQA.
"This decision is not an executory order. It also means that two
laws co-exist, that is, the federal (EQA) and the state law
(Natural Resources and Environmental Ordinance 1993)," Moggie said.
He said as some quarters viewed that the EIAs should be approved
by the state and thus had complied with the law, it was thus
necessary to clarify with the court which law should apply to
Bakun.
Moggie also said the Government could not direct Ekran to stop
work as the court declaration did not specify such.
He said although the second declaration made reference to the
word "construction," it did not define what the term covered.
"We do not know if they (Ekran) are going against the court
ruling. The question now is on the scope of work which is covered
by the EIAs," he said, adding that he was unaware of what
activities were taking place on the project site.
He added, however, that the Government had advised Ekran to
respect the court decision.
On whether Ekran would be ordered to re-submit its EIAs, Moggie
replied that it would be up to the firm to comply with the second
court declaration.
On the Power Purchase Agreement and the Engineering Procurement
Construction (EPC) contract, Moggie said the parties involved would
have to review their next action in view of the court decision.
Tenaga Nasional and Ekran were scheduled to sign an agreement
tomorrow to purchase power generated by Bakun at 16.5 sen per
kilowatt hour but the signing has been postponed.
Sweden's Asia Brown Boveri and Brazil's CPBO were also expected
to sign the EPC contract worth some RM12.5 billion with Ekran.
The Star: 27-Jun-96
Trio seek order on Ekran boss By Esther Ng
KUALA LUMPUR: The three Sarawakians who had secured a High Court
declaration affecting the Bakun Hydroelectric Project sought
yesterday to commit the developer's executive chairman, Tan Sri
Ting Pek Khiing, to prison for alleged contempt of court.
Kajing Tubek, Tahu Lujah and Saran Imu, applied for an order to
commit Ting to prison at the High Court Registry in Wisma Denmark
here.
Of the three, only Kajing was present, accompanied by lawyers
G.S. Nijar, M.Thayalan and Meenakshi Raman.
In the application they said Ting and Ekran Bhd had continued to
carry out the construction of the Bakun project without first
complying with Section 34A of the Environmental Quality Act as had
declared by the court last Wednesday.
In their originating motion, they also said Ting had
"scandalised" the court by stating "Why? Why stop work?" when asked
if he had instructed project developer Ekran Bhd to stop work, as
reported by the press yesterday.
On June 19, Mr Justice Datuk James Foong granted a declaration
that Ekran comply with the Act before it carried out construction
of the project.
This included Section 34(A) of the Act and/or guidelines
prescribed by the Department of Environment director-general under
the Act.
Foong also declared as invalid the Environment Quality
(Prescribed Activities) (EIA Amendment) Order, 1995, gazetted by
the Minister of Science, Technology and Environment which
transferred the approval of EIA for projects in Sarawak, including
the Bakun project, from Federal jurisdiction to the state.
Kajing, in his affidavit, said his solicitors wrote to Ekran
several times to inquire whether Ekran was still carrying out work
on the project but there was no reply from Ekran's solicitors.
He said Ting and Ekran were defying the terms, effect and spirit
of the court order, impairing the dignity of the court and the
administration of justice in the country and scandalising the
court.
Earlier yesterday, the three filed an application to restrain
Ekran, its agents or servants, from carrying on with its activities
in constructing the Bakun project until the company had complied
with the Act.
This included the plaintiffs' right to participate in and give
their views before the EIA was approved.
The three named Ekran, Director-General of the Department of
Environment, the Federal Government, the Sarawak state government
and state Natural Resources and Environment Board as defendants in
their originating summons.
Last Thursday, Ekran filed its notice of appeal to the Court of
Appeal against Foong's decision.