12:01PM Sep 10, 2012
The Appellate Court in Putrajaya today unanimously rejected an appeal by 10 Kuantan residents who are seeking leave from the Kuala Lumpur High Court to challenge the issuance of a temporary operating licence (TOL) to Lynas Bhd last January.
This was the second decision by the courts within a week to dismiss applications challenging the validity of a project originating from Pahang, as last week the Federal Court dismissed the appeal by the Bukit Koman residents against the Raub Australian Gold Mine Sdn Bhd.
Justice Ramly Ali, who is leading a three-member bench, said the court is not persuaded by the appellants’ arguments and agreed that the High Court judge had not erred in her judgment.
He said there is no hard and fast rule where the issue of alternative remedy should be addressed and definitely in a judicial review where there are disputed facts and allegations, it was best that the matter be heard by the body involved.
“We agree that the residents have not exhausted their internal remedy of Section 32 of the Atomic Energy Licensing Act where they can appeal to the minister.”
“Hence we dismiss the appeal (for leave) solely on this ground,” he said.
The other members are Justices Abdul Wahab Patail and Anantham Kasinather.
The difference between this appeal and the and the two judicial review cases filed in Kuantan is that in this case the residents did not appeal to the science, technology and innovation minister.
In the Kuantan matter, one party did not appeal to the minister and the other appealed against the minister, but the appeal was rejected.
Is it academic?
Questions remained that if the 10 affected residents were to file a fresh judicial review application again from the start after minister’s appeal, it may be academic as the minister, Maximus Ongkili, had already rejected the other residents’ appeal under Section 32 of the Atomic Energy Licensing Act last June.
Furthermore, the Atomic Energy Licensing Board had on Wednesday issued a TOL which is for two years for the Australian firm to conduct trial processing of lanthanide concentrates in stages and in limited quantities under close and continuous surveillance by the authorities. This was despite the Jan 30 TOL order issued by AELB with conditions.
On April 12, KL High Court Justice Rohana Yusof dismissed the leave application on the grounds that they have not exhausted all their avenues including appealing to the minister before they filed the judicial review application.
In judicial review applications, it is not an automatic right for the applications to be heard as leave (permission) has to be granted first by the High Court to make sure the application is not frivolous and vexatious.
Some 100 residents had left after midnight in three buses to hear the appeal before the court.
The 10 residents were represented by Tommy Thomas and K Shanmuga.
The Atomic Energy Licensing Board (AELB) and the director-general of Department of Environment were represented by Noor Hisham Ismail.
Lynas was represented by Cecil Abraham and Sunil Abraham.
Thomas, in submitting today, said Justice Rohana had possibly imposed a higher threshold in not granting leave.
“Our situation is similar to the Kuantan residents who filed for judicial review but decided not to appeal against the minister, while another group appealed but was rejected. Our situation is similar to the first group where leave was granted by the Kuantan High Court,” he said.
Abraham argued that the residents’ application could be academic with the fact that they did not appeal the minister’s decision.
“They had an opportunity to appeal the minister’s decision under the licensing Act and had not exhausted their right and hence, the High Court decided not to grant leave,” the senior lawyer said.
Parties considering legal suit
Shanmuga indicated after the decision today that they will await instructions from their clients on whether to appeal to the Federal Court.
“If we are to appeal to the Federal Court, we have to obtain leave first,” he said.
Meanwhile, Badan Bertindak Anti Rare Earth Refinery (Badar) and the PAS environment bureau chief Zulkefly Mohamad Omar, said they are studying the possibility of filing a legal suit on 10 parties including government ministries, the local government and Lynas on whether they had violated its duty in granting the TOL.
“We will study the matter first in naming the Science, Technology and Innovation Ministry, the Kuantan Municipal Council, the Housing and Local Government Ministry, the AELB and other parties in the legal action. We will study this carefully,” he said.
Also present during today’s application were Kuantan MP Fuziah Salleh and other members of the Save Malaysia Stop Lynas group.
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