PUTRAJAYA: Villagers of Kampung Bukit Koman in Raub who claim to have suffered health problems from the use of cyanide in a gold mine in the vicinty, can continue on with their legal struggle for a pollution- free environment.
This follows a decision by a three-man Federal Court panel chaired by Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum to allow the residents' application for leave to appeal against a High Court's refusal to grant them permission to commence a judicial review.
They failed in their bid to obtain leave from the High Court on June 1 2009 to file a judicial review proceeding to challenge the Environment Director-General's decision to approve a preliminary environmental impact assessment (PEIA) report concerning the Bukit Koman gold mine which is located nearby their village.
Malanjum, who sat on the panel with Federal Court judges Tan Sri Abdull Hamid Embong and Datuk Ahmad Maarop, gave the nod on one legal question to be determined by the Federal Court. The question of law was whether a court, in determining an application for extension of time to file a leave application, is required to consider the merits of the applicants' complaint set out in their leave application to commence a judicial review.
The High Court threw out the residents' leave application for a judicial review on grounds that there was an inordinate delay by them in filing the application and that they did not have good reasons for the court to grant an extension of time for them to file their application.
Order 53 Rule 6 of the Rules of the High Court 1980 provides that an application for leave for judicial review shall be made prompty and in any event within 40 days from the date when the grounds of the application first arose or when the decision was first communicated to the applicant.
The appellate court accepted the findings of the High Court and dismissed the residents' appeal on Aug 3 last year.
Outside the court, their lawyer Malik Imtiaz Sarwar said both the High Court and appellate court had held that the court would only look at the reasons for the delay in filing the application and not the merits of the complaint which precluded the public interest dimension.
The Environment Director-General approved the PEIA report on Jan 13, 1997. Via a letter dated Feb 21, 2008, the DG declined to acceed to the residents' request to review the PEIA and require Raub Australian Gold Mining Sdn Bhd (RAGMSB) to provide a detailed one.
On March 21, 2008, four representatives of the residents, Wong Kin Hoong, Chong Sow Pin, Hue Fui How and Mustapha Hussin (Mustapha passed away last night), filed leave to initiate a judicial review proceeding naming the Environment Director-General and RAGMSB.
The residents want the Environment DG to require RAGMSB to furnish a detailed EIA report as they claimed the preliminary EIA (PEIA) report submitted by the gold mining company on Aug 27, 1996 contained serious deficiencies.
They claimed the PEIA report omitted information on where and how treatment of gold mining waste should be disposed off, and also contained inadequate information on discharge of effluents.
The residents also alleged the PEIA report infringed on their fundamental rights to life and livelihood due to its omission on the facility's risks to public health and environment.
They also claimed that the PEIA preparation did not include public participation.
In their affidavit affirmed on May 12, 2009, the applicants alleged that in early February 2009, they encountered strong and noxious fumes several times a day, causing them to choke, suffer giddiness, shortness of breath, irritation to the eyes and lungs, nausea and body rashes.
Senior Federal Counsels Suzana Atan and Suhaila Haron represented the Enviroment Director-General while RAGMSB was represented by a team of lawyers led by Tan Sri Cecil Abraham. -- BERNAMA