Kuantan residents get nod for judicial review of Lynas licence extension by Cabinet

A worker walks inside the Lynas factory compound in Gebeng, April 19, 2012. — Reuters pic
A worker walks inside the Lynas factory compound in Gebeng, April 19, 2012. — Reuters pic

KUALA LUMPUR, Jan 8 — The High Court in Kuala Lumpur today allowed three Kuantan residents to continue their lawsuit seeking to revoke and invalidate the federal Cabinet’s August 2019 decision granting a conditional six-month extension of Lynas’ operating licence of a rare earth plant in Kuantan, Pahang.

The Kuantan residents’ lawyer Dinesh Athinarayanan said the High Court granted leave for judicial review as the Malaysian government represented by the Attorney-General’s Chambers’ Liew Horng Bing did not object to permission being granted for the legal challenge to be heard in court.

“The application came before the court, the AGC had no objections and hence leave for judicial review was granted today before Justice Datuk Nordin Hassan. Next, we have to file in the judicial review application,” he told Malay Mail after the matter came up for a hearing in chambers before the judge.

Dinesh also said the High Court fixed January 21 for case management, when it is expected to fix the hearing date for the judicial review application or the legal challenge against the Cabinet’s decision.

On November 8, 2019, three Kuantan residents — Tan Bun Teet, Ismail Abu Bakar, G. Ponusamy — filed their application for leave for judicial review.

In their application for leave for judicial review, the trio named 31 respondents, including a list of all 28 Cabinet ministers topped by Prime Minister Tun Dr Mahathir Mohamad, Deputy Prime Minister Datuk Seri Dr Wan Azizah Wan Ismail, Minister of Energy, Science, Technology, Environment and Climate Change (Mestecc) Yeo Bee Yin.

Also in the list of 31 respondents being sued are the Malaysian government, the Atomic Energy Licensing Board (AELB) and Lynas Malaysia Sdn Bhd.

When contacted, Tan confirmed that he and the two others were suing as representatives of anti-Lynas groups Save Malaysia, Stop Lynas (SMSL) and Pertubuhan Solidariti Hijau Kuantan (PSHK).

Chronology of events

In their statement to support the leave application that was filed in court, the trio outlined the events that led to the filing of their lawsuit, including Tan’s 2018 appearance and presentation of SMSL’s views to a government-appointed executive review committee (ERC) that was reviewing Lynas’ operations, as well as the ERC’s presentation in November 2018 of its own report to Yeo’s ministry.

Among other things, the trio noted that the AELB had on December 4, 2018 imposed two pre-conditions before Lynas could renew its operating licence that was expiring on September 2, 2019, namely the removal of 451,000 tonnes of Water Leached Purification Residue (WLP) or waste with naturally-occurring radioactive material by September 2 and the submission of an action plan before September 15, 2019 of Lynas’ plans to dispose 1.113 million tonnes of scheduled wastes known as Neutralization Underflow Residue (NUF).

The trio said that Lynas had then on January 3, 2019 appealed to Mestecc minister Yeo against AELB’s conditions, and that Lynas had then submitted on February 13, 2019 an Environmental Impact Assessment Report (EIA) on the scheduled wastes of NUF

The Kuantan residents said Mestecc on May 23, 2019 then went on to approve Lynas’ EIA report with 68 conditions despite objections by Tan, also noting that Dr Mahathir had on May 30, 2019 said Lynas would be allowed to continue operating in Malaysia.

Tan said Yeo on June 29, 2019 heard Lynas for its appeal along with witnesses and expert views being recorded, but said his view was not sought despite his numerous written objections to Mestecc.

The trio said the AELB on August 15, 2019 then confirmed that the Cabinet had decided to grant the six-month extension of Lynas’ operating licence with three new conditions imposed.

What the Kuantan residents want

The trio’s position is that only Yeo as the Mestecc minister has the legal right to decide on Lynas’ operating licence as the power to decide is only vested in the Mestecc minister under the law, and that she could not delegate her decision-making powers to the Cabinet.

In the three Kuantan residents’ lawsuit, they are seeking for several court orders, including a declaration that the Cabinet’s August 2019 decision to reverse AELB’s December 2018 decision on conditions for Lynas’ operations was null and void as it was made ultra vires or beyond what the law allows under Section 32 of the Atomic Energy Licensing Act.

They also want a declaration that Yeo had unlawfully and wrongly delegated her decision-making power under Section 32 to the Cabinet and that the Cabinet’s decision was null and void, as well as an order to quash the Cabinet’s August 2019 decision, and an order to compel Yeo to decide on the appeal by Lynas and the trio.

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