The Court of Appeal judgement on Monday on the Bakun hydroelectric dam case in favour of Ekran Bhd is a fatal blow to the cause of environment and the efficacy of the Environment Quality Act (EQA) in particular with regard to Environmental Impact Assessment (EIA) requirements.
The Court of Appeal held that the High Court judge Justice James Foong should not have granted the two declarations to the three Belaga longhouse residents - Kajing Tubek, Tahu Lujah and Saran Imu - on June 9 last year, firstly invalidating the Environment Quality (Prescribed Activities) (Environment Impact Assessment) Amendment Order 1995 gazetted by the Science, Technology and Environment Minister transferring approval of EIA projects in Sarawak over natural resources from federal to state jurisdiction and secondly, requiring Ekran to comply with Section 34A of the Environment Quality Act 1974 before construction of the dam could commence.
The Court of Appeal held that the EQA did not apply to Bakun because the land is located in Sarawak and that the state government had legislative jurisdiction over that land.
Advocates of this line of argument had held that power relating to the environment dealing with rivers, forestry and land, including natural resources, belong to the state as a “residual power” because it is not mentioned in the federal law, federal list of legislation or concurrent subjects.
By extension of this judgement, Parliament had passed an invalid and unconstitutional Environmental Quality Act, as all state governments could now enact their own environmental laws superseding the EQA. In fact, the invocation of the EQA requirements on EIA involving development of natural resources by the Department of Environment in any state without its own environment enactment on natural resources could now be challenged by any developer as illegal, unconstitutional and therefore of no effect.
This is a most ridiculous and shameful end for a Parliamentary law, passed to give teeth to the protection of the environment. What makes its even more ludicrous is that the Attorney-General’s Chambers should be arguing against the EQA in the Court of Appeal when it is the Attorney-General’s Chambers which had presented the EQA to Parliament for passage in the first place!
Furthermore the record of the State Governments in environmental guardianship, whether it concerns golf courses, resorts or hillside developments, had been a dismal one and the public have no confidence in State Governments to uphold the integrity of EIA studies, as requiring public notice and consultation before any EIA is approved.
The Federal Government seems to be very happy about the Court of Appeal judgement when they should be very concerned that the Department of Environment in the Ministry of Science, Technology and Environment is most denuded and stripped of most of its substantive jurisdiction and powers over environment and would soon have to surrender most of its environmental powers to the various states, who will now be emboldened to follow in the footsteps of the Sarawak state government and enact their own environmental laws over natural resources.
If the Federal Government is serious about environmental protection, then it should introduce a constitutional amendment to entrench the fundamental right to a clean and safe environment to every Malaysian and give to the Federal Government co-equal rights as the states to be responsible for environmental law in all aspects, including natural resources.
(20/2/97)