Malaysiakini – Gov’t raises objection to Lynas legal challenge

Hafiz Yatim
11:18AM Feb 28, 2012

An attempt to mount a legal challenge against the Atomic Energy Licensing Board (AELB) for awarding a temporary operating licence (TOL) to Australian-based company Lynas has come up against a setback.

The Attorney-General’s (AG) Chambers raised a preliminary objection today on behalf of the AELB at the Kuala Lumpur High Court.

It argued that the 10 residents who filed the application have not exhausted all avenues available to them, including appealing to the minister.

Senior federal counsel Suzana Atan and Norhisham Ismail raised the preliminary objection when the matter came up in chambers.

The applicants, including a retired naval warrant officer, a production shift manager and a mechanical fitter, want the TOL licence to be quashed.

Lynas has applied to reply to the applicants’ affidavits, as well as to an affidavit by a chemical engineer who recorded his expert opinion on the disputed rare earth refinery project in Gebeng, Kuantan.

The company has also adopted the government’s preliminary objection.

Justice Rohana Yusof fixed March 20 to hear the matter.

The applicants are represented by K Shanmuga, Aston Paiva, Maha Balakrishnan and Azira Aziz, and Lynas by Dominic Puthucheary.

Initially, it was fixed for an ex-parte (one-party) hearing, or in this case, the application of the residents today for leave (permission) to initiate a judicial review of the matter.

Normally, the respondents do not appear during the leave stage, since the matter is ex-parte.

In applications involving declaratory prayers, the parties involved are required to obtain leave from the court to make sure that their applications are not frivolous and vexatious, which may abuse the court process.

Supporters from Kuantan

Two buses ferrying supporters from Kuantan arrived early this morning to back the applicants. They were met by their counterparts in Kuala Lumpur who were wearing anti-Lynas T-shirts.

Kuantan MP Fuziah Salleh was in court, together with PAS environmental committee chairperson Zulkefly Mohd Omar.

Zulkefly a former PAS candidate in the Bagan Pinang by-election, had once led residents to oppose the Broga incinerator project in Selangor.

The applicants want Lynas to be required to carry out a detailed environment impact assessment (DEIA) study, to be submitted to the Department of Environment.

They have claimed that the granting of the TOL is unconstitutional as it violate their equality, right to life and right to hold property. They claim that the AELB’s decision to give the TOL is ultra vires (beyond its powers).

Lynas, they claimed, lacks the experience in extracting rare earth oxides from rare earth concentrates or ore, which is the main function of the Gebeng plant.

The residents also want a stay (deferment) on the operation of the Lynas until a full DEIA is done.

They and other opposing the plant were clearly upset that the proceedings were carried out in chambers as they  had hoped for an open court hearing.

About 100 of the supporters gathered inside the courtroom, sporting the yellow anti-Lynas T-shirts.

As the public gallery was full, they were stood along the aisle and some sat on the floor.

The police officer in charge of the courts, DSP N Munusamy, was present to ensure everything was in order.

After the lawyers and Fuziah briefed the supporters and residents on what had transpired, they shouted anti-Lynas slogans demanding that Lynas moves the RM700 million plant to Australia.

They then boarded the two buses that were parked at the court compound to return to Kuantan.

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