Thursday, September 6, 2012

Mahkamah Persekutuan tolak rayuan penduduk Bkt Koman

Bukit Koman residents have lost their last legal chance to force the Raub Australian Gold Mining Sdn Bhd (RAGMS) to conduct a Detailed Environmental Impact Assessment (DEIA).

This follows the Federal Court’s dismissal of their appeal to get leave for the case to be heard on its merits at the Kuala Lumpur High Court.

bukit koman mining site and wells 310107The five-member bench was led by Court of Appeal president Md Raus Sharif.

Justice Raus, the second-most senior judicial officer in the country, said they had deliberated on the matter and that their finding was unanimous.

“We find no reason to disturb the decision of the courts below and dismiss the appeal.

“We answer the question in the negative.”

The other judges were Federal Court judges Abdull Hamid Embong, Ahmad Ma’arop, Hasan Lah and Zaleha Zahari.
The question 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' case.
Meanwhile, counsel for the residents, Malik Imtiaz Sarwar, argued that this was a matter of public interest where the courts below - High Court and Court of Appeal - did not order costs.

Despite this, justice Raus ordered the residents to pay costs of RM15,000.
 Filed out of time
The Bukit Koman residents in Raub had initially failed to obtain leave from the Kuala Lumpur High Court on June 1, 2009 when Justice Lau Bee Lan  had ruled that the residents had filed their application out of time.
Hence the question posed before the court was pertinent to the case for the residents to file an extension of time for their application and have it heard.

On March 21, 2008, Bukit Koman residents led by Wong Kim Hong, Chong Sow Pin, Hue Fui How, and Mustapha Hussin filed their judicial review application at the KL High Court on behalf of the residents, where they named the Department of Environment (DOE) and Raub Gold Mining as the respondents.

The residents are concerned over the alleged use of cyanide in extracting gold leftovers, and they were seeking several declarations namely:
  • They want the court to declare that the Environmental Impact Assessment (EIA) report submitted by the mining company to the DOE in 1996 did not comply with certain requirements of the Environment Quality Act;
  • They are also seeking a certiorari order (to quash) the DOE’s approval of the preliminary EIA report;
  • They want a Detailed Environmental Impact Assessment (DEIA) to be ordered on the company;
  • A declaration that the developers must obtain a DEIA before proceeding with gold-mining works; and,
  • The residents also want the court to order the company to cease its operations until a DEIA is made.
The Court of Appeal had upheld the KL High Court’s decision on Aug 3, 2011.

‘Judicial review bid has ended’
RAGMS counsel Cecil Abraham said today’s decision meant that the judicial review application has ended.

NONEThe residents’ counsel, Malik Imtiaz, described the apex court's as "conservative".

“You can look at the Kampung Terentang case in Rawang (with Tenaga Nasional Bhd) and also this case,” he said.

The court, he said, was eventually saying in answering the question that "despite having merits as we have produced, if you are out of time in filing the application then the application is dismissed".

“You can look at the amount of work the residents did trying to get the EIA, which was produced in 1997, and then hire specialists to study it.
NONE"There was a lot of time spent, and we were late in filing it and (as such) they have dismissed it,” said Malik (left).

This, Malik said, was not a progressive judgment, but "despite this we respect the decision".
In his submission Malik pointed out that the EIA report was blatantly insufficient for the residents as the company should have been asked to conduct the DEIA.

He noted that despite claims made by RAGMS counsel that they had put up a notice of the EIA in 1997, the residents found it in only one English daily.
"There was a foul smell in the late afternoons, or evenings and this has caused respiratory problems."
Considering in filing a review
 However, Cecil objected to Malik reading the affidavit, saying that it would be prejudicial to his client and that was filed after the High Court decision.

Asked to comment on the next course of action for the residents, Malik said the residents have the option of filing a review of today's decision.
"That would be entirely up to them. The other option is for the residents to file personal action but that would be difficult as we have to challenge the EIA first which they were doing now," he said.

The Environmental Impact Assessment over the proposed project was undertaken by the company and approved by the Department of Environment in 1997.

However, sometime in 2006 when environmental group Sahabat Alam Malaysia stepped in, the residents received confirmation from the DOE on March 2007 that the project will go on.

Parties are required to file judicial review applications within 40 days of a decision.

The residents tried to look for the EIA report filed in 1997 and only found it on October 2007.

bukit koman gold mining cyanide 010207 lakeMalik had submitted that if the October 2007 date was taken into consideration, the residents were late in filing it within four months of the DOE letter and not 10 years.

“The residents sent the report to a specialist, who found that the project, in using cyanide, may endanger the ground water,” he said.

They filed the judicial review application on March 21, 2008 after getting the expert’s opinion.
 Residents came in two buses

Some 80 Bukit Koman residents arrived as early as 5am in two buses, only to return home dejected seven hours later. They were briefed by their lawyers as to what transpired and what the decision meant.

Chong Pui Han, 34, one of the residents said the residents cannot understand why the court could not rule for them in such a matter of public interest.

"All we are asking is for an extension of time for the matter to be heard properly. Since the company began its project in 2009, some 400 residents complained of health and respiratory problems.

"There are 3,000 residents in Bukit Koman and this is not only affecting Bukit Koman but also the surrounding kampungs nearby," she said

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