Environmental Law in Malaysia
Content
GMUL 5063
CONTENTS Theory • Environmental ethics • Evolution of Environmental pollution • Legal Framework – before 1974
Environmental Quality Act 1974 • • • •
Regulations under EQA Regulatory Framework Penalty Department of Environment
Environmental Impact Assessment • • • •
Requirement, scope, process Penalty Post EIA Compliance and Monitoring Targets
Application • Issues • Case Laws
Theory Environmental Quality Act Environmental Impact Assessment Application
RELATIONSHIP Earth
Nature
Human
Leopold‟s Land Ethics –“if man wants to survive and to preserve other species he has to change his own behaviour, get rid of the pretension to be the king of nature and cultivate new habits that help to care for the natural environment”
THEORY People
Nature
• Activities
• Impact
• Behavior
• Responds
Ecological Ethics
•Human interaction with nature and earth and the impact of his activities •Moral need to consider regulations with respect to nature •One‟s right to live is the same as the other members of the Earth: soil, water, plants and animals •Stresses the priority of human values: nature as unique and integral on a planetary scale and the preservation of nature is a common task and care for all humankind
THEORIES OF ENVIRONMENTAL ETHICS Leopold
• It is not sufficient to consider only the interests of humankind and take no care of ecological equilibrium; rather a new and more balanced ethics must be built. • Any behavior favorable to keeping the integrity and stability of flora and fauna is right and good, otherwise it is wrong and evil.
Kenneth E. Goodpaster From Egoism to Environmentalism
Prof. Paul Taylor of Princeton University
• Environmental problem is a huge crisis for the 21st century. • Emphasized that humankind must change its attitude from egoism and chauvinism towards nature and survive • The natural world as an interdependent system in which humans are members of the earth‟s life community. • As every living entity as unique and cannot be replaced, therefore we must respect nature, respect life. • There should exist a moral standard between man and nature, without this elementary ethical principle no adequate ethics can be formed.
Schweizer
• all life is the great creation of nature and should be respected with great care • The relation between man and nature should be a close and mutually appreciative as with an organism.
• "Dao (Buddha) is present everywhere. Everywhere on earth, be it large or small, Ancient Chinese philosophy whether alike or lifeless, has a reason for existence. Therefore we should respect to life and nature and everything on earth should be treated equally”
THEORIES - TAKEAWAYS Human, Earth and Nature make up an organic system of interdependence, or one world or commonwealth. Mankind is a member of the earth‟s life of community, expressed as a global village. According to an old Chinese saying, the members of a community should cross a river in the same boat, meaning that people in the same community should help each other.
Man and nature should constitute a partnership in which each depends on the other, helps each other, not a relation of conqueror and conquered or master and slave
Natural things do not exist for man, but have their own internal objective. Humans must not substitute their own objectives for those of nature, but must respect nature, respect life.
It is necessary to overcome the idea of human egoism and to advocate that everything on earth is equal and in harmony.
EVOLUTION OF ENVIRONMENTAL POLLUTION
1980s Global Impact 1970s Local impact 1950s Economic reconstruction
1990s Heightened Awareness
Regulated practices towards sustainable development
EVOLUTION OF ENVIRONMENTAL POLLUTION Environmental pollution
Rapid industrialisation in 1950s to 1970s
Ecological Crisis
Globalised Impact
EVOLUTION OF ENVIRONMENTAL POLLUTION
International symposium (on the environment) 1968 – Italian Academy
• First international symposium on the ecological crisis • Discussed the present environmental situation • Attended by 30 specialists from 10 countries of Asia and the West • Formed the Club of Rome joined by 100 scholars from over 40 countries to assess the environmental pollution impact onto the world
GLOBAL REQUIREMENT Declaration of the United Nations Conference on Human Environment, Stockholm 1972 •Recognised the need to adopt measures for the protection of environment •„Environment‟ includes the totality of nature and natural resources, including the cultural heritage and the man-made infrastructure to facilitate the development of socio-economic activities
Theory Environmental Quality Act Environmental Impact Assessment Application
LEGAL FRAMEWORK – Before 1974 Water Enactment 1920 (Act 418)
Forest Enactment Act 1934 Cap 153
Land and Conservation Act 1960
•To control and prohibit disruption of rivers, so as not to interfere with the smooth flow of water •Restriction of discharges of specific substances into the river which might be detrimental to the beneficial use of the river waters throughout Peninsular Malaysia
•Establishment of forest reserves and control in logging activities •Control in logging activities
•Aimed at conserving hill land and the protection of soil from erosion and inroads of silt •Prohibits planting of short-term crops on any hill land
LEGAL FRAMEWORK – Before 1974 (con’t) Mining Act
•Controls discharges from mining activities
Poisons Ordinance 1952
•Regulates use of Toxic substances
Merchant Shipping Ordinance
•Governs marine pollution by vessels
LEGAL FRAMEWORK – Before 1974 (con’t)
Issues
• Unable to curb soaring environmental problems due to rapid advancement of modern industries and technologies • Existing legislations was not to address environmental concerns but mainly on other specific activities • Largely sectoral in focusing specific areas and activities
ENVIRONMENTAL QUALITY ACT 1974
Gezetted on 14 March 1974
•An Act relating to the prevention, abatement, control of pollution and enhancement of the environment, and for the purposes connected therewith
ENVIRONMENTAL QUALITY ACT 1974 Environmental Quality (Amendment) Act 1985
Act A636
10 Jan 1986
Environmental Quality (Amendment) Act 1996 Act A953
01 August 1996
Environmental Quality (Amendment) Act 1998 Act 1030
21 August 2001
Environmental Quality (Amendment) Act 2001 Act A1102
28 June 2001, 19 July 2001
Environmental Quality (Amendment) Act 2007 Act A1315 30 August 2007
POLICY FRAMEWORK
Vision 2020
National Development Plan
Basel Convention (Movement of Hazardous Waste & Disposal)
Environmental policies
Convention of Climate Change and Biodiversity
•The various national policies and international development impacts environmental management policies and regulations •2002 – National Policy on Environment to provide policy framework towards coordinated environmental management efforts
ENVIRONMENTAL QUALITY ACT 1974
• Part 1: Preliminary • Part II : Administration • Part III : Licenses
EQA 1974 (Act 127)
• Part IV : Prohibition and Control of Pollution
• Part IV A : Control of Scheduled Wastes • Part V : Appeal and Appeal Board • Part V A : Payment of Cess and Environmental Fund
• Part VI : Miscellaneous
Governed by 35 regulations to regulate specific activities and impact onto the environment
ELEMENTS COVERED UNDER EQA 1974
Noise
Water
Industrial wastes
Air EQA1974
EXAMPLES OF REGULATIONS UNDER EQA 1974 Environmental Quality (Licensing) Regulations 1977
Environmental Quality (Control of Emissions from Petrol Engines) Regulations 1996
Environmental Quality (Delegation of Powers) (Investigation of Open Burning) Order 2000 Environmental Quality (Declared Activities) (Open Burning) Order 2003
Environmental Quality (Appeal Board) Regulations 2003
REGULATIONS UNDER EQA1974 (related to EIA) Environmental Quality (Clean Air ) Regulations 1978 Environmental Quality Regulations 1979
(Sewage
and
Industrial
Effluents)
Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 Environmental Quality (Scheduled Wastes) Regulations 1989 Environmental Quality (Prescribed Premises) (Scheduled Wastes Treatment and Disposal Facilities) Order 1989 Environmental Quality (Prescribed Premises) (Scheduled Wastes Treatment and Disposal Facilities) Regulations 1989
REGULATORY FRAMEWORK • Director General of DOE
• Ministry with advise from Environment Council Grant, renew, transfer, revoke licenses
Issuance of licenses with conditions • Director General of DOE
Regulate prescribed premises
Assessment of activities • Director General of DOE
PENALTY
Failure to hold a license for prescribed premises Failure to comply with conditions of license
Contravention of monitoring conditions Alterations of licensed equipment Alterations of vehicles, ship or premise to become prescribed conveyances or premises
LICENSING REQUIREMENT S.16(2) of EQA 1974 •Any holder of a license who contravenes subsection (1) shall be guilty of an offence and shall be liable to a fine not exceeding twentyfive thousand ringgit or to imprisonment for a period of not exceeding two years or to both, and to a further fine of one thousand ringgit for every day that the offence is continued after a notice by the Director General requiring him to comply with such term or condition specified therein has been served upon him
COMPOUNDING OF OFFENCES S.45 of EQA 1974 • (1)The Director General or any Deputy Director General, or any other public officer or any local authority to whom the Director General has delegated such power in writing, may compound any offence under this Act or the regulations made thereunder which is prescribed by the Minister to be a compoundable offence by accepting from the person reasonably suspected of having committed the offence a sum of money not exceeding two thousand ringgit
• (2) The Minister may make rules to prescribe the method and procedure for compounding such offences
ENFORCEMENT CONCEPT
•Prevention is better than cure •Cradle to grave
Assessment
Application of License •Based on requirement
•Monitoring compliance •Audits, checks
•Shall not likely cause adverse impact to the environment
Enforcement
Compound •Based on extent of non-conformance or damage •Includes making good of the situation
APPEAL S.35 of EQA 1974 • (1)Any person who is aggrieved by: • a. Refusal to grant a license or transfer license • b. The imposition of any condition, limitation or restriction on his license • c. The revocation, suspension or variation of his license • d. The amount which he would be required to pay under section 47 • e. Any decision of the Director General under subsection )3) or (4) of section 34 A, and • f. Any decision of the Director General or any officer under subsection (2) or (5) of section 48A • may within such time and in such manner as may be prescribed, appeal to the Appeal Board
APPEAL BOARD • Environmental Quality (Appeal Board) Regulations 2003
Regulation
• Chairman • Deputy Chairman
Members • Member • To hear appellant in person or his representatives • Consider any additional evidence or documents
Power
• To award cost or make order in respect to the appeal
• Notice to appeal - Within 30 days of date of decision communicated to appellant
Duration
• Grounds of appeal – within 30 days after submission of notice
OTHER FEATURES OF EQA 1974
Director General of the DOE Environmental Quality Council Environmental Quality Audit Cess and Environmental Fund
APPOINTMENT OF DIRECTOR GENERAL S3(1) EQA 1974 • There shall be a Director General of Environmental Quality who shall be appointed by the Minister from amongst members of the public service and whose powers, duties and functions shall be - ….
This led to the formation of the Department of Environment as the enforcement agency of EQA 1974
DEPARTMENT OF ENVIRONMENT
DOE as Enforcement Agency
• Institutionalised in 1975 • Main role is to prevent, control and abate pollution through the enforcement of the EQA,1974 and its 34 subsidiary legislations made thereunder
• The principal agency entrusted to administer the EQA 1974 and its subsidiary legislations
DEPARTMENT OF ENVIRONMENT • Established in 1975, EQA 1974
Appointment
• 15 state offices, 26 branch offices • Ministry of Science, Technology and Environment (now know as Green Technology and Water) •Mission - To ensure sustainable development in the process of nation building
Scope
Roles and Responsibilities
•Air, Noise, substances
Water,
Marine,
Hazardous
•Cradle to grave concept – source generator has to ensure the source does not have adverse impact onto the environment throughout its life •Prevention, control and abatement of pollution through the enforcement of the Environmental Quality Act of 1974 and its subsidiary legislations
DEPARTMENT OF ENVIRONMENT Environmental Quality Council
Environment Institute of Malaysia (EiMAS)
•Established on 12 April 1977 under Section 4(1)of the Environmental Quality Act, 1974 •Advise the Ministry on matters pertaining to the Act •Provides policy guidance to the DOE the formulation of policies and strategies towards a more holistic approach to environmental management
•Assist in raising the level of public awareness on the importance of environmental conservation efforts •Trainings for Policies, Tools and development •Provides certification for competent Environment practitioner
•Provides training for certification
Theory Environment Quality Act Environmental Impact Assessment Application
LEGAL REQUIREMENT OF EIA S.34A(2) of EQA (Amendment) Act 1985 Gazettement of Environmental Quality (Prescribed Activities, EIA) Order 1987
• Any person intending to carry out any of the prescribed activity shall, before any approval for the carrying out of such activity is granted by the relevant approving authority, submit a report to the Director General. The report shall contain an assessment of the impact of such activity will have or is likely to have on the environment and the proposed measures that shall be undertaken to prevent, reduce or control the adverse impact on the environment
EIA COVERAGE Environmental Quality Act
• Prescribed Activities (Environmental Impact Assessment) Order, 1987 Prescribed Activities • 19 as listed in the Schedule Exceptions • First Schedule of the Conservation of Environment (Prescribed Activities) Order 1999 published under the Second Supplementary of the Sabah Government Gazette on the 30 August 1999 • First Schedule of the Natural Resources and Environment (Prescribed Activities) Order 1994 published under Part II of the Sarawak Government Gazette on the 18 August 1999 Preliminary or Detailed EIA • Extent of Project – significance of impact
PRESCRIBED ACTIVITIES Industry Infrastructure
Agriculture
Quarries
Airport
Railways Transportation
Petroleum Water Supply
Fisheries
Prescribed Activities
Ports Waste Treatment & Disposal Resort & Recreational Development
Forestry
Land reclamation Housing Mining
Drainage & Irrigation Power Generation & Transmission
PENALTY S.34A(8) of EQA Act 1974 •Any person who contravenes this section shall be guilty of an offence and shall be liable to a fine not exceeding five years or both and to a further fine one thousand ringgit for every day that the offence is continued after a notice by the Director General requiring him to comply with the act specified therein has been served upon him
CONTENTS OF EIA Project information – background, initiator, statement of need Project description – process flow description, design basis, sources of effluent, air and noise emissions, treatment
Condition of existing environment – physical and biological systems Potential Impacts and Mitigating Measures Construction, Commissioning, Operations
during
Environmental Management System Simulation model on potential impact of activities to the existing environment
SCOPE OF EIA Socio Economic Environment
Community
EIA Assessment
EIA PROCESS
•Project proposal •Nature of project
Assessment •Short and long term impacts
•Review •Presentation
•Deliberation
•Socio economics
Application
Approval •Approval Conditions •Monitoring
Submission
POST EIA COMPLIANCE Monthly progress reports • Analysis results of Effluent (Water), Air, Noise parameters • Compliance to EIA Approval Conditions and Guidelines by the DOE • Remedial actions for non-compliances Checks / Visits by DOE Officers • Scheduled and unscheduled
Liason officer • Appointed company representative for liason with the DOE • Ensure all requirement under EIA approval conditions and EQA 1974 are strictly adhered to
EIA CYCLE Assessment
Sustaining
Monitoring
Identification of impact
Corrective and mitigating actions
Theory Environmental Quality Act Environmental Impact Assessment Application
APPLICATION ISSUES (1) Issues • Absence of any provision for coordination between organisation and individuals for enforcement • Fragmented and disjointed nature of legal framework – state often address issues on an adhoc nature rather than on long-term approach • Colonial influence of maximising exploitation of natural resources. Inhibits concerted environmental policy developments at the federal and state level
APPLICATION ISSUES (2) Issues • Overlapping functions between Environmental and Planning agencies – The DOE is responsible for industrial pollution control, however other natural resources are under the jurisdiction of other ministries or regulating bodies with separate sets of regulations. Each ministry promotes development within their own ministry without proper coordination with environmental management • DOE recommendation to permit or refuse a development can be ignored by the State Planning Committee
• State Planning Committee may disregard the recommendation for purposes of Economic development
CASE LAW EIA : FEDERAL VS STATE LAW Kajing Tubek & Ors vs Ekran Bhd & Ors (1996) 2 M.L.J. 388 • Tahu Lujah, 70, Saran Emu, 48, and Kajing Tubek, 39, had wanted EIA reports to be made available to them for their views
• Dispute whether the Bakun Hydroelectric Dam (Bakun Dam) is to be considered under the EQA 1974 which is a Federal environmental legislation or to be governed by the Sarawak State Law, Natural Resources Ordinance 1974 • The Minister of Science, Technology and Environment (MOSTE) excluded the application of the Federal EIA requirements in relation to the construction of dams in the State of Sarawak (1995 Amendment Order)
CASE LAW EIA : FEDERAL VS STATE LAW Kajing Tubek & Ors vs Ekran Bhd & Ors (1996) 2 M.L.J. 388 • Decision : 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 by the project proponent … it cannot be made without some form of public participation … For this is a right vested with the plaintiffs …… • The High Court's judgment invalidated the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Amendment Order of 1995 and ordered the project developer to comply with the Environmental Quality Act of 1974 before proceeding with the construction of the dam. • The 1995 amendment order was deemed invalid because of its retroactive application which removed rights that had already accrued to the plaintiffs under the Environmental Quality Act of 1974, namely the right to public participation in the environmental impact assessment process of the dam.
CASE LAW EIA : FEDERAL VS STATE LAW Kajing Tubek & Ors vs Ekran Bhd & Ors (1996) 2 M.L.J. 388 • Note:
• The Bakun EIA was approved amidst much controversy in 1995 when it was discovered that the Federal Environmental Quality Act 1974 (EQA) was retrospectively amended to allow the authority of the EIA approval for certain projects in Sarawak to be transferred to the Natural Resources and Environment Board (NREB) which is subject to the Sarawak Natural Resources and Environment Ordinance 1994 (SNREO).
CASE LAW EIA : LOCUS STANDI Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23 • Appeal to challenge High Court‟s decision
• Decision : 17 February 1997 the Court of Appeal, ruled to allow their appeal • 1. The Sarawak Ordinance co-exists with the EQA, each operating within its own sphere based on the constitutional authority of the State of Sarawak to regulate by legislation those components of the environment that fall within its domain. The Judge concluded that „[in] my judgment, Parliament, when it passed the EQA, did not intend, and could not have intended, to regulate so much of the environment as falls within the legislative jurisdiction of Sarawak.‟ (Court of Appeal Judgment). He agreed with the submission of the Senior Counsel that the Amendment Order was made „not for the purpose of cutting the ground from under the feet of the respondents as suggested by their Counsel, but for the purpose of making it abundantly clear to all concerned that the 1987 order was not, for constitutional reasons, meant to apply to Sarawak.
CASE LAW EIA : LOCUS STANDI Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23
• 2. “In particular he (the Judge of High Court) did not have sufficient regard for public interest. Additionally he did not consider the interests of justice from the point of view of both the appellants and respondents” • The Court of Appeal, in a stunning reversal of the High Court, held that the Defendants had no locus standi because they had suffered no special injury over and above the injury common to others. • Note : Locus standi – „place of standing‟ that is a place to stand in court or a right to appear in a court of justice on a given question
CASE LAW EIA : CONTRAVENTION LICENSE Lam Eng Rubber Factory (M) Sdn Bhd vs Director of Environment, Kedah & Perlis [2005] 2 All Malaysian Report (AMR) 471
• The appellant operates a rubber factory in Sungai Petani, Kedah. The factory has been in operation since 1940. Each year the appellant applied for and obtained a license from the local authority. In 1974, the Environmental Quality Act ("the EQA") came into force. Appellant had to obtain a license from the Department of the Environment, Kedah, which the appellant did so. However, appellants‟ application for 1994 license was not approved. • Appellant appealed to the Appeal Board S (35) but was not heard. The DOE refused to issue the license • Appellant went to the High Court to quash the decision of the DOE‟s refusal to issue the license • 25 February1995 – appellant lost since the appellant had no license for the year 1994, but yet they had carried on their factory illegally and had no legitimate expectation to have a license for 1995.
CASE LAW EIA : CONTRAVENTION LICENSE Lam Eng Rubber Factory (M) Sdn Bhd vs Director of Environment, Kedah & Perlis [2005] 2 AMR 471
• Brought the case to Appeal Board for:
• 1st respondent to consider to grant the license • 2nd respondent to hear the case of appeal for the license • Appellant – Lam Eng Rubber • First Respondent – Director General of the DOE • Second Respondent – Appeal Board • Decision – Appeal granted
CASE LAW EIA : CONTRAVENTION LICENSE Lam Eng Rubber Factory (M) Sdn Bhd vs Director of Environment, Kedah & Perlis [2005] 2 AMR 471 • Judgement • “The first respondent, as I have said, had no jurisdiction whatsoever to deal with the appellant's appeal. His act was ultra vires (in violation) the EQA. We therefore allowed the appeal with costs here and below and remitted the appeal to the Appeal Board appointed under s 36 of the EQA to hear and dispose of the appeal in accordance with law. The orders of the High Court were set aside. The deposit was ordered to be refunded to the appellant.” • In the event, other matters that had been submitted on in the appeal before us, which turned on the question whether it is correct that, as the learned judge held, the appellants had no legitimate expectation to a renewal of license because the appellants had not been issued a license for the previous period of April 1, 1994 to March 1995 and therefore there was no license to renew and also because in that period they had been operating illegally since they had no license, and which included the question of who was at fault in the appellants' not being able to obtain a license for that period, ….
CASE LAW : HAZARDOUS WASTE (1) Woon Tan Kan (Deceased) & 7 Ors. vs Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2207 •Storing of Hazardous material at Bukit Merah. Asian Rare Earth (ARE) was formed to extract (an element in earth) from monazit. The main shareholders are Mitsubishi Chemical Industries Ltd (35%), Beh Minerals (35%), Lembaga Urusan dan Tabung Haji (20%) and some local Bumiputera (10%). The company shall produce radioactive waste through the monazit processing. The waste shall belong to the Perak State as it is a potential source of nuclear energy source. •Plant was in operations beginning 11 July 1982 to 1994 •Perak State located the waste storage at the Papan, 16 km from Ipoh. Struggle of 10 years (from 1984 to 1994) •09 December 1984 – Detected radiation level at more than 800 times permitted
CASE LAW : HAZARDOUS WASTE (2) Woon Tan Kan (Deceased) & 7 Ors. vs Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2207 • The Papan community protested and brought the case to Ipoh High Court • 1 February 1985: 8 residents filed summons to stop ARE from producing, storing or pile radioactive waste within the vicinity of the area in line with the Atomic Energy Licensing Act 1984. • Court proceedings in 32 months. Involved internal and external atomic energy experts • 11 July 1992 : Community wins case against ARE. High Court directs ARE operations to stop in 14 days.
CASE LAW : HAZARDOUS WASTE (3) Woon Tan Kan (Deceased) & 7 Ors. vs Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2207 – Follow-ups • 23 July 1992 : ARE raised Appeal at the Supreme Court. • 24 July 1992 : Following ex-parte application by ARE, Supreme Court Judge held Ipoh High Court‟s decision to stop ARE‟s operations. 5 August 1992 : Supreme Court allowed ARE‟s application to reject High Courts ruling on the appeal. The Supreme Court ruled that the closure will bring difficulty to the company and the 183 personnel. • 19 January 1994 : ARE stopped operations
THANK YOU
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The Place of Ecological Ethics in Culture – Celovas Kalenda Earthdance : Living System in Evolution – Elisabeth Sahtouris Environmental Problems and ecological Ethics – Wang Miaoyang Environmental Quality Act 1974 Challenges in Implementing and Enforcing Environmental Protection Measures in Malaysia – Ainul Jaria Maidin Protecting Indigenous Communities in Malaysia – Sahabat Alam Malaysia Preliminary Assessment of Malaysia’s Environmental Law – Alan KJ, Faculty of Law, National University of Singapore Environmental Impact Assessment – Propane Dehydrogenation Project, MTBE Malaysia Sdn Bhd
CASE LAW : LOCUS STANDI Abdul Razak bin Ahmad vs Kerajaan Negeri Johor & Anor. (1994) MLJ 297 • Locus standi – „place of standing‟ that is a place to stand in court or a right to appear in a court of justice on a given question • Plaintif (a resident of Johor) challenged to plan to build a floating city at Selat Tebrau. Plaintif requests that the court declare the project as invalid as it is against Town Planning Act 1976. • Decision: High Court judged that although the project may go against the Act, there is locus standi to show that the non-compliance will has or will cause him grievance unless he can show evidence to the court that he will incur grievance because of the non-compliance. • Being a tax payer does not give sufficient evidence that he has sufficient interest that needs to be protected by the law in the context of the project development. Court judged that if plaintiff want to bring this for further judicial review, the court‟s permission is required while the Local Planning municipality will be required to attend.
LOCUS STANDI - COMPARISON 3 MLJ 640; Abdul Razak Ahmad v Ketua Pengarah Kementerian Sains, Teknologi dan Alam Sekitar [1994] 2 Current Law Journal (CLJ 363);
• Application to access the EIA report of the proposed „floating city‟ in Johor Bahru. • Decision : the High Court of Johor Bahru ruled that as a citizen of Malaysia and a resident of Johor Bahru, the applicant was entitled to a copy of the EIA as respects the development of the proposed „floating city‟ in Johor Bahru. Supra, n 3. However, the applicant had succeeded in this case mainly because the Federal Counsel representing the Director General of Environment did not object that the EIA was a public document.]
LOCUS STANDI - COMPARISON The New South Wales Environmental Planning and Assessment Act • Provides for open standing and for class actions to enforce environmental law within the state. Under S123, any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. A person may bring proceedings on behalf of himself and others with their consent
LOCUS STANDI - COMPARISON
Australian Conservation Foundation Inc v Commonwealth [1980] 146 CLR 493.
•An environmental group attempting to stop a proposed building development with regard to the validity of purported compliance with certain environmental laws
LOCUS STANDI - COMPARISON MC Metha v Union of India [1987] 4 SCC 463; MC Mehta v Union of India [1987] 1 SCC 395; MC Metha v Union of India & Ors [1996] 4 SCC 351
• Provides for open standing and for class actions to enforce environmental law within the state. Under S123, any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. A person may bring proceedings on behalf of himself and others with their consent.
CONTENTS Theory • Environmental ethics • Evolution of Environmental pollution • Legal Framework – before 1974
Environmental Quality Act 1974 • • • •
Regulations under EQA Regulatory Framework Penalty Department of Environment
Environmental Impact Assessment • • • •
Requirement, scope, process Penalty Post EIA Compliance and Monitoring Targets
Application • Issues • Case Laws
Theory Environmental Quality Act Environmental Impact Assessment Application
RELATIONSHIP Earth
Nature
Human
Leopold‟s Land Ethics –“if man wants to survive and to preserve other species he has to change his own behaviour, get rid of the pretension to be the king of nature and cultivate new habits that help to care for the natural environment”
THEORY People
Nature
• Activities
• Impact
• Behavior
• Responds
Ecological Ethics
•Human interaction with nature and earth and the impact of his activities •Moral need to consider regulations with respect to nature •One‟s right to live is the same as the other members of the Earth: soil, water, plants and animals •Stresses the priority of human values: nature as unique and integral on a planetary scale and the preservation of nature is a common task and care for all humankind
THEORIES OF ENVIRONMENTAL ETHICS Leopold
• It is not sufficient to consider only the interests of humankind and take no care of ecological equilibrium; rather a new and more balanced ethics must be built. • Any behavior favorable to keeping the integrity and stability of flora and fauna is right and good, otherwise it is wrong and evil.
Kenneth E. Goodpaster From Egoism to Environmentalism
Prof. Paul Taylor of Princeton University
• Environmental problem is a huge crisis for the 21st century. • Emphasized that humankind must change its attitude from egoism and chauvinism towards nature and survive • The natural world as an interdependent system in which humans are members of the earth‟s life community. • As every living entity as unique and cannot be replaced, therefore we must respect nature, respect life. • There should exist a moral standard between man and nature, without this elementary ethical principle no adequate ethics can be formed.
Schweizer
• all life is the great creation of nature and should be respected with great care • The relation between man and nature should be a close and mutually appreciative as with an organism.
• "Dao (Buddha) is present everywhere. Everywhere on earth, be it large or small, Ancient Chinese philosophy whether alike or lifeless, has a reason for existence. Therefore we should respect to life and nature and everything on earth should be treated equally”
THEORIES - TAKEAWAYS Human, Earth and Nature make up an organic system of interdependence, or one world or commonwealth. Mankind is a member of the earth‟s life of community, expressed as a global village. According to an old Chinese saying, the members of a community should cross a river in the same boat, meaning that people in the same community should help each other.
Man and nature should constitute a partnership in which each depends on the other, helps each other, not a relation of conqueror and conquered or master and slave
Natural things do not exist for man, but have their own internal objective. Humans must not substitute their own objectives for those of nature, but must respect nature, respect life.
It is necessary to overcome the idea of human egoism and to advocate that everything on earth is equal and in harmony.
EVOLUTION OF ENVIRONMENTAL POLLUTION
1980s Global Impact 1970s Local impact 1950s Economic reconstruction
1990s Heightened Awareness
Regulated practices towards sustainable development
EVOLUTION OF ENVIRONMENTAL POLLUTION Environmental pollution
Rapid industrialisation in 1950s to 1970s
Ecological Crisis
Globalised Impact
EVOLUTION OF ENVIRONMENTAL POLLUTION
International symposium (on the environment) 1968 – Italian Academy
• First international symposium on the ecological crisis • Discussed the present environmental situation • Attended by 30 specialists from 10 countries of Asia and the West • Formed the Club of Rome joined by 100 scholars from over 40 countries to assess the environmental pollution impact onto the world
GLOBAL REQUIREMENT Declaration of the United Nations Conference on Human Environment, Stockholm 1972 •Recognised the need to adopt measures for the protection of environment •„Environment‟ includes the totality of nature and natural resources, including the cultural heritage and the man-made infrastructure to facilitate the development of socio-economic activities
Theory Environmental Quality Act Environmental Impact Assessment Application
LEGAL FRAMEWORK – Before 1974 Water Enactment 1920 (Act 418)
Forest Enactment Act 1934 Cap 153
Land and Conservation Act 1960
•To control and prohibit disruption of rivers, so as not to interfere with the smooth flow of water •Restriction of discharges of specific substances into the river which might be detrimental to the beneficial use of the river waters throughout Peninsular Malaysia
•Establishment of forest reserves and control in logging activities •Control in logging activities
•Aimed at conserving hill land and the protection of soil from erosion and inroads of silt •Prohibits planting of short-term crops on any hill land
LEGAL FRAMEWORK – Before 1974 (con’t) Mining Act
•Controls discharges from mining activities
Poisons Ordinance 1952
•Regulates use of Toxic substances
Merchant Shipping Ordinance
•Governs marine pollution by vessels
LEGAL FRAMEWORK – Before 1974 (con’t)
Issues
• Unable to curb soaring environmental problems due to rapid advancement of modern industries and technologies • Existing legislations was not to address environmental concerns but mainly on other specific activities • Largely sectoral in focusing specific areas and activities
ENVIRONMENTAL QUALITY ACT 1974
Gezetted on 14 March 1974
•An Act relating to the prevention, abatement, control of pollution and enhancement of the environment, and for the purposes connected therewith
ENVIRONMENTAL QUALITY ACT 1974 Environmental Quality (Amendment) Act 1985
Act A636
10 Jan 1986
Environmental Quality (Amendment) Act 1996 Act A953
01 August 1996
Environmental Quality (Amendment) Act 1998 Act 1030
21 August 2001
Environmental Quality (Amendment) Act 2001 Act A1102
28 June 2001, 19 July 2001
Environmental Quality (Amendment) Act 2007 Act A1315 30 August 2007
POLICY FRAMEWORK
Vision 2020
National Development Plan
Basel Convention (Movement of Hazardous Waste & Disposal)
Environmental policies
Convention of Climate Change and Biodiversity
•The various national policies and international development impacts environmental management policies and regulations •2002 – National Policy on Environment to provide policy framework towards coordinated environmental management efforts
ENVIRONMENTAL QUALITY ACT 1974
• Part 1: Preliminary • Part II : Administration • Part III : Licenses
EQA 1974 (Act 127)
• Part IV : Prohibition and Control of Pollution
• Part IV A : Control of Scheduled Wastes • Part V : Appeal and Appeal Board • Part V A : Payment of Cess and Environmental Fund
• Part VI : Miscellaneous
Governed by 35 regulations to regulate specific activities and impact onto the environment
ELEMENTS COVERED UNDER EQA 1974
Noise
Water
Industrial wastes
Air EQA1974
EXAMPLES OF REGULATIONS UNDER EQA 1974 Environmental Quality (Licensing) Regulations 1977
Environmental Quality (Control of Emissions from Petrol Engines) Regulations 1996
Environmental Quality (Delegation of Powers) (Investigation of Open Burning) Order 2000 Environmental Quality (Declared Activities) (Open Burning) Order 2003
Environmental Quality (Appeal Board) Regulations 2003
REGULATIONS UNDER EQA1974 (related to EIA) Environmental Quality (Clean Air ) Regulations 1978 Environmental Quality Regulations 1979
(Sewage
and
Industrial
Effluents)
Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 Environmental Quality (Scheduled Wastes) Regulations 1989 Environmental Quality (Prescribed Premises) (Scheduled Wastes Treatment and Disposal Facilities) Order 1989 Environmental Quality (Prescribed Premises) (Scheduled Wastes Treatment and Disposal Facilities) Regulations 1989
REGULATORY FRAMEWORK • Director General of DOE
• Ministry with advise from Environment Council Grant, renew, transfer, revoke licenses
Issuance of licenses with conditions • Director General of DOE
Regulate prescribed premises
Assessment of activities • Director General of DOE
PENALTY
Failure to hold a license for prescribed premises Failure to comply with conditions of license
Contravention of monitoring conditions Alterations of licensed equipment Alterations of vehicles, ship or premise to become prescribed conveyances or premises
LICENSING REQUIREMENT S.16(2) of EQA 1974 •Any holder of a license who contravenes subsection (1) shall be guilty of an offence and shall be liable to a fine not exceeding twentyfive thousand ringgit or to imprisonment for a period of not exceeding two years or to both, and to a further fine of one thousand ringgit for every day that the offence is continued after a notice by the Director General requiring him to comply with such term or condition specified therein has been served upon him
COMPOUNDING OF OFFENCES S.45 of EQA 1974 • (1)The Director General or any Deputy Director General, or any other public officer or any local authority to whom the Director General has delegated such power in writing, may compound any offence under this Act or the regulations made thereunder which is prescribed by the Minister to be a compoundable offence by accepting from the person reasonably suspected of having committed the offence a sum of money not exceeding two thousand ringgit
• (2) The Minister may make rules to prescribe the method and procedure for compounding such offences
ENFORCEMENT CONCEPT
•Prevention is better than cure •Cradle to grave
Assessment
Application of License •Based on requirement
•Monitoring compliance •Audits, checks
•Shall not likely cause adverse impact to the environment
Enforcement
Compound •Based on extent of non-conformance or damage •Includes making good of the situation
APPEAL S.35 of EQA 1974 • (1)Any person who is aggrieved by: • a. Refusal to grant a license or transfer license • b. The imposition of any condition, limitation or restriction on his license • c. The revocation, suspension or variation of his license • d. The amount which he would be required to pay under section 47 • e. Any decision of the Director General under subsection )3) or (4) of section 34 A, and • f. Any decision of the Director General or any officer under subsection (2) or (5) of section 48A • may within such time and in such manner as may be prescribed, appeal to the Appeal Board
APPEAL BOARD • Environmental Quality (Appeal Board) Regulations 2003
Regulation
• Chairman • Deputy Chairman
Members • Member • To hear appellant in person or his representatives • Consider any additional evidence or documents
Power
• To award cost or make order in respect to the appeal
• Notice to appeal - Within 30 days of date of decision communicated to appellant
Duration
• Grounds of appeal – within 30 days after submission of notice
OTHER FEATURES OF EQA 1974
Director General of the DOE Environmental Quality Council Environmental Quality Audit Cess and Environmental Fund
APPOINTMENT OF DIRECTOR GENERAL S3(1) EQA 1974 • There shall be a Director General of Environmental Quality who shall be appointed by the Minister from amongst members of the public service and whose powers, duties and functions shall be - ….
This led to the formation of the Department of Environment as the enforcement agency of EQA 1974
DEPARTMENT OF ENVIRONMENT
DOE as Enforcement Agency
• Institutionalised in 1975 • Main role is to prevent, control and abate pollution through the enforcement of the EQA,1974 and its 34 subsidiary legislations made thereunder
• The principal agency entrusted to administer the EQA 1974 and its subsidiary legislations
DEPARTMENT OF ENVIRONMENT • Established in 1975, EQA 1974
Appointment
• 15 state offices, 26 branch offices • Ministry of Science, Technology and Environment (now know as Green Technology and Water) •Mission - To ensure sustainable development in the process of nation building
Scope
Roles and Responsibilities
•Air, Noise, substances
Water,
Marine,
Hazardous
•Cradle to grave concept – source generator has to ensure the source does not have adverse impact onto the environment throughout its life •Prevention, control and abatement of pollution through the enforcement of the Environmental Quality Act of 1974 and its subsidiary legislations
DEPARTMENT OF ENVIRONMENT Environmental Quality Council
Environment Institute of Malaysia (EiMAS)
•Established on 12 April 1977 under Section 4(1)of the Environmental Quality Act, 1974 •Advise the Ministry on matters pertaining to the Act •Provides policy guidance to the DOE the formulation of policies and strategies towards a more holistic approach to environmental management
•Assist in raising the level of public awareness on the importance of environmental conservation efforts •Trainings for Policies, Tools and development •Provides certification for competent Environment practitioner
•Provides training for certification
Theory Environment Quality Act Environmental Impact Assessment Application
LEGAL REQUIREMENT OF EIA S.34A(2) of EQA (Amendment) Act 1985 Gazettement of Environmental Quality (Prescribed Activities, EIA) Order 1987
• Any person intending to carry out any of the prescribed activity shall, before any approval for the carrying out of such activity is granted by the relevant approving authority, submit a report to the Director General. The report shall contain an assessment of the impact of such activity will have or is likely to have on the environment and the proposed measures that shall be undertaken to prevent, reduce or control the adverse impact on the environment
EIA COVERAGE Environmental Quality Act
• Prescribed Activities (Environmental Impact Assessment) Order, 1987 Prescribed Activities • 19 as listed in the Schedule Exceptions • First Schedule of the Conservation of Environment (Prescribed Activities) Order 1999 published under the Second Supplementary of the Sabah Government Gazette on the 30 August 1999 • First Schedule of the Natural Resources and Environment (Prescribed Activities) Order 1994 published under Part II of the Sarawak Government Gazette on the 18 August 1999 Preliminary or Detailed EIA • Extent of Project – significance of impact
PRESCRIBED ACTIVITIES Industry Infrastructure
Agriculture
Quarries
Airport
Railways Transportation
Petroleum Water Supply
Fisheries
Prescribed Activities
Ports Waste Treatment & Disposal Resort & Recreational Development
Forestry
Land reclamation Housing Mining
Drainage & Irrigation Power Generation & Transmission
PENALTY S.34A(8) of EQA Act 1974 •Any person who contravenes this section shall be guilty of an offence and shall be liable to a fine not exceeding five years or both and to a further fine one thousand ringgit for every day that the offence is continued after a notice by the Director General requiring him to comply with the act specified therein has been served upon him
CONTENTS OF EIA Project information – background, initiator, statement of need Project description – process flow description, design basis, sources of effluent, air and noise emissions, treatment
Condition of existing environment – physical and biological systems Potential Impacts and Mitigating Measures Construction, Commissioning, Operations
during
Environmental Management System Simulation model on potential impact of activities to the existing environment
SCOPE OF EIA Socio Economic Environment
Community
EIA Assessment
EIA PROCESS
•Project proposal •Nature of project
Assessment •Short and long term impacts
•Review •Presentation
•Deliberation
•Socio economics
Application
Approval •Approval Conditions •Monitoring
Submission
POST EIA COMPLIANCE Monthly progress reports • Analysis results of Effluent (Water), Air, Noise parameters • Compliance to EIA Approval Conditions and Guidelines by the DOE • Remedial actions for non-compliances Checks / Visits by DOE Officers • Scheduled and unscheduled
Liason officer • Appointed company representative for liason with the DOE • Ensure all requirement under EIA approval conditions and EQA 1974 are strictly adhered to
EIA CYCLE Assessment
Sustaining
Monitoring
Identification of impact
Corrective and mitigating actions
Theory Environmental Quality Act Environmental Impact Assessment Application
APPLICATION ISSUES (1) Issues • Absence of any provision for coordination between organisation and individuals for enforcement • Fragmented and disjointed nature of legal framework – state often address issues on an adhoc nature rather than on long-term approach • Colonial influence of maximising exploitation of natural resources. Inhibits concerted environmental policy developments at the federal and state level
APPLICATION ISSUES (2) Issues • Overlapping functions between Environmental and Planning agencies – The DOE is responsible for industrial pollution control, however other natural resources are under the jurisdiction of other ministries or regulating bodies with separate sets of regulations. Each ministry promotes development within their own ministry without proper coordination with environmental management • DOE recommendation to permit or refuse a development can be ignored by the State Planning Committee
• State Planning Committee may disregard the recommendation for purposes of Economic development
CASE LAW EIA : FEDERAL VS STATE LAW Kajing Tubek & Ors vs Ekran Bhd & Ors (1996) 2 M.L.J. 388 • Tahu Lujah, 70, Saran Emu, 48, and Kajing Tubek, 39, had wanted EIA reports to be made available to them for their views
• Dispute whether the Bakun Hydroelectric Dam (Bakun Dam) is to be considered under the EQA 1974 which is a Federal environmental legislation or to be governed by the Sarawak State Law, Natural Resources Ordinance 1974 • The Minister of Science, Technology and Environment (MOSTE) excluded the application of the Federal EIA requirements in relation to the construction of dams in the State of Sarawak (1995 Amendment Order)
CASE LAW EIA : FEDERAL VS STATE LAW Kajing Tubek & Ors vs Ekran Bhd & Ors (1996) 2 M.L.J. 388 • Decision : 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 by the project proponent … it cannot be made without some form of public participation … For this is a right vested with the plaintiffs …… • The High Court's judgment invalidated the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Amendment Order of 1995 and ordered the project developer to comply with the Environmental Quality Act of 1974 before proceeding with the construction of the dam. • The 1995 amendment order was deemed invalid because of its retroactive application which removed rights that had already accrued to the plaintiffs under the Environmental Quality Act of 1974, namely the right to public participation in the environmental impact assessment process of the dam.
CASE LAW EIA : FEDERAL VS STATE LAW Kajing Tubek & Ors vs Ekran Bhd & Ors (1996) 2 M.L.J. 388 • Note:
• The Bakun EIA was approved amidst much controversy in 1995 when it was discovered that the Federal Environmental Quality Act 1974 (EQA) was retrospectively amended to allow the authority of the EIA approval for certain projects in Sarawak to be transferred to the Natural Resources and Environment Board (NREB) which is subject to the Sarawak Natural Resources and Environment Ordinance 1994 (SNREO).
CASE LAW EIA : LOCUS STANDI Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23 • Appeal to challenge High Court‟s decision
• Decision : 17 February 1997 the Court of Appeal, ruled to allow their appeal • 1. The Sarawak Ordinance co-exists with the EQA, each operating within its own sphere based on the constitutional authority of the State of Sarawak to regulate by legislation those components of the environment that fall within its domain. The Judge concluded that „[in] my judgment, Parliament, when it passed the EQA, did not intend, and could not have intended, to regulate so much of the environment as falls within the legislative jurisdiction of Sarawak.‟ (Court of Appeal Judgment). He agreed with the submission of the Senior Counsel that the Amendment Order was made „not for the purpose of cutting the ground from under the feet of the respondents as suggested by their Counsel, but for the purpose of making it abundantly clear to all concerned that the 1987 order was not, for constitutional reasons, meant to apply to Sarawak.
CASE LAW EIA : LOCUS STANDI Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23
• 2. “In particular he (the Judge of High Court) did not have sufficient regard for public interest. Additionally he did not consider the interests of justice from the point of view of both the appellants and respondents” • The Court of Appeal, in a stunning reversal of the High Court, held that the Defendants had no locus standi because they had suffered no special injury over and above the injury common to others. • Note : Locus standi – „place of standing‟ that is a place to stand in court or a right to appear in a court of justice on a given question
CASE LAW EIA : CONTRAVENTION LICENSE Lam Eng Rubber Factory (M) Sdn Bhd vs Director of Environment, Kedah & Perlis [2005] 2 All Malaysian Report (AMR) 471
• The appellant operates a rubber factory in Sungai Petani, Kedah. The factory has been in operation since 1940. Each year the appellant applied for and obtained a license from the local authority. In 1974, the Environmental Quality Act ("the EQA") came into force. Appellant had to obtain a license from the Department of the Environment, Kedah, which the appellant did so. However, appellants‟ application for 1994 license was not approved. • Appellant appealed to the Appeal Board S (35) but was not heard. The DOE refused to issue the license • Appellant went to the High Court to quash the decision of the DOE‟s refusal to issue the license • 25 February1995 – appellant lost since the appellant had no license for the year 1994, but yet they had carried on their factory illegally and had no legitimate expectation to have a license for 1995.
CASE LAW EIA : CONTRAVENTION LICENSE Lam Eng Rubber Factory (M) Sdn Bhd vs Director of Environment, Kedah & Perlis [2005] 2 AMR 471
• Brought the case to Appeal Board for:
• 1st respondent to consider to grant the license • 2nd respondent to hear the case of appeal for the license • Appellant – Lam Eng Rubber • First Respondent – Director General of the DOE • Second Respondent – Appeal Board • Decision – Appeal granted
CASE LAW EIA : CONTRAVENTION LICENSE Lam Eng Rubber Factory (M) Sdn Bhd vs Director of Environment, Kedah & Perlis [2005] 2 AMR 471 • Judgement • “The first respondent, as I have said, had no jurisdiction whatsoever to deal with the appellant's appeal. His act was ultra vires (in violation) the EQA. We therefore allowed the appeal with costs here and below and remitted the appeal to the Appeal Board appointed under s 36 of the EQA to hear and dispose of the appeal in accordance with law. The orders of the High Court were set aside. The deposit was ordered to be refunded to the appellant.” • In the event, other matters that had been submitted on in the appeal before us, which turned on the question whether it is correct that, as the learned judge held, the appellants had no legitimate expectation to a renewal of license because the appellants had not been issued a license for the previous period of April 1, 1994 to March 1995 and therefore there was no license to renew and also because in that period they had been operating illegally since they had no license, and which included the question of who was at fault in the appellants' not being able to obtain a license for that period, ….
CASE LAW : HAZARDOUS WASTE (1) Woon Tan Kan (Deceased) & 7 Ors. vs Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2207 •Storing of Hazardous material at Bukit Merah. Asian Rare Earth (ARE) was formed to extract (an element in earth) from monazit. The main shareholders are Mitsubishi Chemical Industries Ltd (35%), Beh Minerals (35%), Lembaga Urusan dan Tabung Haji (20%) and some local Bumiputera (10%). The company shall produce radioactive waste through the monazit processing. The waste shall belong to the Perak State as it is a potential source of nuclear energy source. •Plant was in operations beginning 11 July 1982 to 1994 •Perak State located the waste storage at the Papan, 16 km from Ipoh. Struggle of 10 years (from 1984 to 1994) •09 December 1984 – Detected radiation level at more than 800 times permitted
CASE LAW : HAZARDOUS WASTE (2) Woon Tan Kan (Deceased) & 7 Ors. vs Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2207 • The Papan community protested and brought the case to Ipoh High Court • 1 February 1985: 8 residents filed summons to stop ARE from producing, storing or pile radioactive waste within the vicinity of the area in line with the Atomic Energy Licensing Act 1984. • Court proceedings in 32 months. Involved internal and external atomic energy experts • 11 July 1992 : Community wins case against ARE. High Court directs ARE operations to stop in 14 days.
CASE LAW : HAZARDOUS WASTE (3) Woon Tan Kan (Deceased) & 7 Ors. vs Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2207 – Follow-ups • 23 July 1992 : ARE raised Appeal at the Supreme Court. • 24 July 1992 : Following ex-parte application by ARE, Supreme Court Judge held Ipoh High Court‟s decision to stop ARE‟s operations. 5 August 1992 : Supreme Court allowed ARE‟s application to reject High Courts ruling on the appeal. The Supreme Court ruled that the closure will bring difficulty to the company and the 183 personnel. • 19 January 1994 : ARE stopped operations
THANK YOU
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6.
7.
8.
The Place of Ecological Ethics in Culture – Celovas Kalenda Earthdance : Living System in Evolution – Elisabeth Sahtouris Environmental Problems and ecological Ethics – Wang Miaoyang Environmental Quality Act 1974 Challenges in Implementing and Enforcing Environmental Protection Measures in Malaysia – Ainul Jaria Maidin Protecting Indigenous Communities in Malaysia – Sahabat Alam Malaysia Preliminary Assessment of Malaysia’s Environmental Law – Alan KJ, Faculty of Law, National University of Singapore Environmental Impact Assessment – Propane Dehydrogenation Project, MTBE Malaysia Sdn Bhd
CASE LAW : LOCUS STANDI Abdul Razak bin Ahmad vs Kerajaan Negeri Johor & Anor. (1994) MLJ 297 • Locus standi – „place of standing‟ that is a place to stand in court or a right to appear in a court of justice on a given question • Plaintif (a resident of Johor) challenged to plan to build a floating city at Selat Tebrau. Plaintif requests that the court declare the project as invalid as it is against Town Planning Act 1976. • Decision: High Court judged that although the project may go against the Act, there is locus standi to show that the non-compliance will has or will cause him grievance unless he can show evidence to the court that he will incur grievance because of the non-compliance. • Being a tax payer does not give sufficient evidence that he has sufficient interest that needs to be protected by the law in the context of the project development. Court judged that if plaintiff want to bring this for further judicial review, the court‟s permission is required while the Local Planning municipality will be required to attend.
LOCUS STANDI - COMPARISON 3 MLJ 640; Abdul Razak Ahmad v Ketua Pengarah Kementerian Sains, Teknologi dan Alam Sekitar [1994] 2 Current Law Journal (CLJ 363);
• Application to access the EIA report of the proposed „floating city‟ in Johor Bahru. • Decision : the High Court of Johor Bahru ruled that as a citizen of Malaysia and a resident of Johor Bahru, the applicant was entitled to a copy of the EIA as respects the development of the proposed „floating city‟ in Johor Bahru. Supra, n 3. However, the applicant had succeeded in this case mainly because the Federal Counsel representing the Director General of Environment did not object that the EIA was a public document.]
LOCUS STANDI - COMPARISON The New South Wales Environmental Planning and Assessment Act • Provides for open standing and for class actions to enforce environmental law within the state. Under S123, any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. A person may bring proceedings on behalf of himself and others with their consent
LOCUS STANDI - COMPARISON
Australian Conservation Foundation Inc v Commonwealth [1980] 146 CLR 493.
•An environmental group attempting to stop a proposed building development with regard to the validity of purported compliance with certain environmental laws
LOCUS STANDI - COMPARISON MC Metha v Union of India [1987] 4 SCC 463; MC Mehta v Union of India [1987] 1 SCC 395; MC Metha v Union of India & Ors [1996] 4 SCC 351
• Provides for open standing and for class actions to enforce environmental law within the state. Under S123, any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. A person may bring proceedings on behalf of himself and others with their consent.
