Malayan Law Journal Articles/2000/Volume 3/PUBLIC PARTICIPATION IN THE ENVIRONMENTALIMPACT ASSESSMENT PROCESS IN MALAYSIA

[2000] 3 MLJ cxxxiv

Malayan Law Journal Articles

2000

PUBLIC PARTICIPATION IN THE ENVIRONMENTAL IMPACTASSESSMENT PROCESS IN MALAYSIA

Rajeswari Kanniah

School of Law Kolej Damansara Utama

Abstract

This article reviews the legal provisions for public participation in the Environmental Impact Assessment(EIA) process in Malaysia as set out in the statutes and as defined by the Malaysian courts. It will be evidentthat the current provisions for public participation in the EIA process are inadequate. The law must giverecognition to the right of public participation and the courts should be more liberal in their interpretation oflocus standi if this right is to be meaningfully exercised.

EIA laws in Malaysia

EIA became a mandatory requirement in Malaysia effective from 9 January 1986, with an amendment to theEnvironmental Quality Act 1974 (Act 127) ('the EQA'), with the insertion of s 34A.1 Following this, theMinister of Science, Technology and the Environment issued the Environmental Quality (PrescribedActivities) (Environmental Impact Assessment) Order 1987 (PU(A) 362/1987), which took effect on1 April 1988. The Director General of Environment subsequently issued 'A Handbook of EnvironmentalImpact Assessment Guidelines'('the EIA Handbook') which provides for the procedures for conducting EIAs.The EIA Handbook is a piece of subsidiary legislation by virtue of s 34A(2) of the EQA2 and

3 MLJ cxxxiv at cxxxvprocedures contained therein are therefore legally enforceable and binding on all parties.3

Sarawak is the only state in Malaysia to enforce its own legislation on EIA, ie s 11A(1) of the NaturalResources and Environment Ordinance 1993 (effective from 1 February 1994), Sarawak Natural Resourcesand Environment (Prescribed Activities) Order 1994 (effective from 1 September 1994) and 'A Handbook ofthe Basic Policy and Procedure of Environmental Impact Assessment (EIA) in Sarawak'('the Sarawak EIAHandbook') (effective from 27 January 1995).4

Nature of the EIA process

The EIA process has been evolving for the last three decades. Essentially, it is a process that identifies andpredicts adverse consequences on the environment as a result of any proposed activity and recommendsalternatives or other measures to mitigate these consequences. Ideally, the objective of EIA is to interveneearly in the socio-economic planning and development process to prevent or minimize an activity's adverseimpacts while maximizing its beneficial effects.

A definition of EIA is not available in the EQA but can be found in the EIA Handbook:

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Environmental Impact Assessment is a study to identify, predict, evaluate and communicate information about theimpacts on the environment of a proposed project and to detail out the mitigating measures prior to project approvaland implementation.5

The following is a general summary of the steps taken in the EIA process:

1 identification and prediction of significant effects of a proposed action on the environment;2 evaluation of various alternatives which are available for the proposed action;3 proposals for mitigation measures to reduce the unacceptable impacts on the environment;4 selection of the best project option; and5 presentation of these predictions and options to decision-makers.

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In Malaysia, only those activities listed as prescribed activities require an EIA. The Environmental Quality(Prescribed Activities) (Environmental Impact Assessment) Order 1987 lists prescribed activities under19 headings for which EIAs are mandatory for the whole of Malaysia,6 with the exception of Sarawak forthose activities which are already listed in the Sarawak Natural Resources and Environment (PrescribedActivities) Order 1994.7 There are a further 57 activities itemized under these 19 headings. The SarawakNatural Resources and Environment (Prescribed Activities) Order 1994 lists 24 activities under sevenheadings for which EIAs are mandatory in the state of Sarawak. Furthermore, an additional five activities8

have been added by consensus by the National Land Council.9

Public participation in the Malaysian EIA process

Principles for Public Participation in the EIA Process

Why is public participation considered so crucial in the EIA process? There are many answers and the mostobvious would be that involving all concerned stakeholders in the decision-making process renders it a fairerand more democratic one. It would also ensure more transparency and therefore make it less amenable tocorrupt influences. Ethically, it allows for a balanced consideration between competing interests. It engagesthe parties in a constructive process, ensuring that all the relevant considerations that need to be factoredinto the decision have been brought

3 MLJ cxxxiv at cxxxviiout to the surface and will be considered before a final decision is made. According to Yeater andKurukulasuriya:10

The voice of the people most likely to be affected by a proposed project should critically influence the EIA process.They, more than anyone else, can provide the information needed for sound decisions to be made about the nature oflikely adverse impacts and the overall acceptability of proposed mitigation measures. On the positive side, they canbest assist the determination of economic and social benefits flowing from the project. All of this constitutes invaluableinput for better informed and more balanced project decisions. For these reasons, adequate public participation iscrucial to the EIA process.

Sheate contends that public involvement may identify issues that the experts may not have detected asimportant 'but which could prove to have a degree of importance out of all proportion to the magnitude of theimpact'.11

In determining to what extent public participation is effective in the EIA process, it is relevant to consider notonly who is involved in the process but also whether the process itself allows for meaningful participation totake place. Some form of inter-agency consultation and public participation in the EIA process is a wellaccepted norm, although the degree to which it is practised varies depending on the social, legal and politicalclimate in different countries. In the United States, where the concept of EIA originated, consultation and

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participation is required under s 102 of the National Environmental Policy Act 1969 and indeed has been the'driving force in the evolution of EIA in the United States'.12

The Governing Council of the United Nations Environment Programme (UNEP) adopted goals and principlesof EIA as a guide for its member countries in 1987. The relevant principles relating to inter-agencyconsultation and public participation are as follows:

Principle 7

Before a decision is made on an activity, government agencies, members of the public, experts in relevant disciplinesand interested groups should be allowed appropriate opportunity to comment on the EIA.

Principle 9

The decision on any proposed activity subject to an EIA should be in writing, state the reasons therefor, and include theprovisions, if any, to prevent, reduce or mitigate damage to the environment.

This decision should be made available to interested persons or groups.'13

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The above principles envisage public participation as a two-fold mechanism - during the EIA process itselfbefore a decision on the project is taken (Principle 7) and after the decision has been made, the reasons forthe decision must be made available to interested parties (Principle 9). Participation is therefore given awider meaning to include not only involvement during the EIA process itself, but also an opportunity to stillinfluence the outcome of the EIA process after a decision has been made. It is in this wider context of publicparticipation that the Malaysian provisions for public participation in the EIA process will be examined later inthis paper.

UNEP recommends that there are three categories of participants who should be involved in the EIAprocess:14

1 those who carry out and manage the EIA;2 those who can 'contribute facts, ideas or concerns' to the EIA 'including scientists, economists,

engineers, policy makers and representatives of interested or affected groups'; and3 the project-approving authorities.

The EIA process would therefore not be complete without the involvement of all relevant parties in arriving ata determination of the best possible option for a proposed activity. Apart from the project proponent, the staffinvolved in managing the EIA and the relevant public officials charged with the responsibility of administrationof the EIA process, there are other important groups of people who should be taking part. The related local,state and federal authorities, and scientific and technical experts need to be consulted for their inputs and thepeople who may be affected by the proposed activity and other interested individuals or groups who maywish to participate in the EIA process should be given an opportunity to have their say. While mostjurisdictions, including Malaysia, as a matter of policy and practice would automatically provide forconsultation of other organs of the executive and independent experts in the relevant fields in the EIAprocess, the right of participation of affected communities and others in the public interest is not alwaysguaranteed.

In developing criteria to evaluate the EIA process, Wood emphasizes an added dimension, ie the principle offairness in the EIA process, thus:15

3 MLJ cxxxiv at cxxxix

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-- all interested parties (stakeholders) have equal opportunity to influence the decision before it is made, and

-- people directly affected by the projects have equal access to compensation.

Public participation in the EIA process therefore has several dimensions, ie there should be equalopportunity for public consultation before a decision on the project is taken; the reasons for the decisionstaken must be publicly available; there must be an avenue to hear appeals and affected parties must beequitably compensated.

Public Participation in Malaysia Under Federal EIA Laws

In Malaysia, stated policy on public participation and what actually happens in reality is a far cry from thedesired outcome with respect to public participation in the EIA process.

The EIA Handbook expresses the role of the public in the EIA process in the following terms:16

The interaction between people and their environment is fundamental to the concept of impact. Some form of publicparticipation in environmental impact assessment is the most reliable way of predicting the impact of a project onpeople. A responsible, interested and participating public is important in environmental management.

The federal law provides for three avenues for public participation in the EIA process in Malaysia:

1 during the Preliminary Assessment stage, the project proponent can obtain such participationthrough the means suggested in the EIA Handbook;

2 during the Detailed Assessment stage, members of the public may send in their submissionsafter the Detailed Assessment Report has been made public; and

3 after the Director General of Environment has made a decision, an appeal can be filed under s35(e) of the EQA by aggrieved members of the public who have an interest to protect.

At the Preliminary Assessment stage of the EIA process, some form of public participation is termed as'essential'17 and 'mandatory'18 in the EIA Handbook. According to the EIA Handbook, a valid assessmentcannot be made without some form of public participation, which can be an aid to project planning in thefollowing manner:19

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(1) Monitor community needs and ensure that the direction or emphasis of the project continues to satisfythose needs.

(2) Identify both material and psychological impacts of the projects on the community.(3) Measure and promote the social acceptance of the project in the community and avoid costly

modifications or abandonment of the project at a later stage.(4) Monitor changing environmental values in the community.(5) Obtain additional environmental information known to the local population.

The choice of the form of public participation is left to the project proponent. Some forms recommended inthe EIA Handbook are public opinion sampling, public meetings or workshops and regular meetings with aCitizens' Committee.20 It is categorically stated in the EIA Handbook that:21

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A valid assessment of the impact of a project on the community cannot be made without some form of publicparticipation. However, public participation must be carefully planned to obtain the maximum benefit from it.

In the Detailed Assessment stage, according to the EIA Handbook, public participation 'should beincluded':22

... if it is likely to benefit the planning of the project in the following ways:

(1) Clarify the nature of impacts or provide a better estimate of the magnitude of impacts.(2) Provide project planners with a better understanding of community aspirations and needs.(3) Allay fears in the community or improve the social acceptability of the project.(4) Provide additional environmental information to project planners.

The EIA Handbook also states that the need for public participation and the form it should take 'should bediscussed' when the terms of reference for the Detailed Assessment are being formulated. The forms ofpublic consultation proposed at this stage are the same as those for Preliminary Assessment, except that atthe Preliminary Assessment stage, members of the public neither have access to a copy of the EIA Report,nor do they have a right to comment on the report. At that early stage, it is the project proponent who iscanvassing for public opinion about the proposed project.

In 1996, after a general review of the effectiveness of current EIA procedures, the Department ofEnvironment (DOE) introduced a new

3 MLJ cxxxiv at cxlidimension into the drafting of the terms of reference. For the first time, the terms of reference for all DetailedEIA Reports were required to be displayed for public comments. The DOE felt that this would help topromote the exchange of views at an early stage of the EIA process and these issues could then beaddressed in the EIA Report. The DOE concluded that:

The process greatly benefited the project proponent as it resulted in overall time saving in project planning and betterdecision-making as a result of more information.23

In addition, apart from independent experts, 'interested members of the public with the necessaryqualification'24 were invited to sit on the Review Panels 'to ensure that reports were more comprehensiveand thus accelerate the review process'.25 These changes are a clear departure from the current provisionsof the EIA Handbook with regard to the procedure for Detailed Assessment. As the latest edition of the EIAHandbook is 1995, these new requirements which were introduced in 1996 have not been published as arevision of the EIA Handbook. Until these welcome revisions are inserted into the EIA Handbook, theirapplication can be questioned if a challenge were to be raised.

It is the responsibility of the project proponent to ensure that sufficient copies of the Detailed EIA Reporthave been published for the Review Panel, the approving authority, concerned environment-related agenciesand the interested public.26 The onus is on the project proponent to notify the Review Panel where the publicmay obtain copies of the Detailed EIA Report and the cost of each copy.27 The project proponent alsoforwards copies to the approving authority and the related environmental agencies. As soon as the ReviewPanel receives the Detailed EIA Report, it puts up public notices 'as it considers appropriate' (usually this is

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by way of an announcement in the local press) stating that the Detailed EIA Report has been received forreview, the nature and location of the project, where copies can be obtained and the cost of each copy, andthat public representations and comments on the EIA Report should be forwarded in writing to the ReviewPanel not later than 45 days of the notice.28 The Detailed EIA Reports are also open for inspection at all theDOE offices.29 According to the DOE, in spite of this provision, public participation is still

3 MLJ cxxxiv at cxlii'very much lacking'. For the nine Detailed EIA Reports the DOE received in 1997, only 16 comments werereceived from the public.30

The lack of public participation can be explained. It is quite understandable that public participation may belacking if the onus is left to the project proponent to collect and present public views on the impact of theproject as is the case during the Preliminary Assessment stage. In such a situation, it is the projectproponent who controls and manages the process of participation and the extent of participation wouldnaturally be dependent upon the opportunities presented by the project proponent to the public to expresstheir views.

However, this is not the case at the Detailed Assessment stage where the public hase a right to submit theircomments once the EIA Report is available and there have been occasions when a project that threatensserious implications on the environment has drawn numerous submissions from environmental organizationsand individuals. This has been borne out in the EIA process for the Penang Hill project for which the DetailedEIA Report was submitted in 1991. The DOE reported that for this 'much publicised' project, it received 419written comments (before the closing date) and 953 written comments (after the closing date)31 frommembers of the public in conjunction with the review process of the Detailed EIA Report, signifying thestrong public interest generated against the proposed development plans for Penang Hill. The Detailed EIAReport for the Penang Hill project was eventually rejected by the DOE. Another case in point is the SungeiSelangor Dam EIA Report which was released on 2 March 1999. When the deadline for receiving commentsfrom the public expired, the DOE had received 'some 200 letters, and the officers were still counting'.32

However, the Director General of Environment lamented that in this case, only 18 of the letters in factcommented on the technical and scientific consequences of the proposed dam's environmental impact whilethe rest were protest letters. This is a reflection of a possible misconception on the part of the public as to thetype of comments that will be taken into consideration in the EIA review process.

The nature of participation of the public in this process can be real or illusory depending on the followingfactors:

1 The nature of the public notice given by DOE, which usually appears as a publicannouncement in the local press. For isolated rural or native communities, suchannouncements may not be adequate notice.

3 MLJ cxxxiv at cxliii2 Accessibility to the EIA Reports is also an issue. There have been complaints that the reports

are only available in certain urban locations which may be inconvenient for affectedcommunities.33

3 The cost of the Detailed EIA Report, which has been known to be excessive (for example, theBakun Hydro-electric Power Project EIA Report was priced at RM150 per copy).

4 The technicalities of the Detailed EIA Report which would not be comprehensible to a layman.

Public participation can be effective if the relevant EIA documents are made available at convenientlocations, at free or reasonable cost and are comprehensible to the layman, ie at least a non-technicalsummary is provided. Project proponents may only restrict accessibility to certain documents for reasons ofnational security or commercial sensitivity.

Unless there are interest groups with expertise in the relevant disciplines who are able to understand, digestand evaluate the data presented in the Detailed EIA Report on behalf of the affected communities, it is highlyunlikely that the communities themselves will be able to comment with sufficient authority on the impact of

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the project.

The EIA Handbook provides for public participation in the EIA process to be negated in certaincircumstances.34 Should the project proponent believe that, in the 'public interest' a Detailed EIA Reportshould not be made available to the public, an application must be forwarded by the project proponent,through the project-approving authority. If the project-approving authority, in consultation with the Ministry ofScience, Technology and the Environment, considers that it is not in the public interest to publicize thereport, the matter is then referred to the National Development Planning Committee (NDPC) for a decision.35

The NDPC is the highest level planning committee for national level projects. The fact that the NDPC isentrusted with a final decision and not the project-approving authority ensures that at the very least theparties directly involved in the project are not involved in the decision-making. However, for federal levelprojects for which the NDPC is the project-approving

3 MLJ cxxxiv at cxlivauthority, it would not be seen to be fair for the NDPC to be the final arbiter.

The Detailed Assessment Reviews of projects which have been published and made available for publiccomments and which subsequently have been approved for implementation, are open for public inspection.This is useful as it affords an opportunity for members of the public who may be aggrieved by the decision ofthe Director General of Environment to approve the EIA Report, to have access to the grounds for approvalbefore filing an appeal to the Appeal Board, as provided under s 35(e) of the EQA. However, this avenue hasto-date never been used. In the case of the Sungei Selangor Dam EIA, citizen groups called for a secondEIA to be conducted by an independent EIA consultant as they doubted the integrity of the Detailed EIAReport that had been submitted by the project proponent, which was subsequently approved by the ReviewPanel with conditions attached. The current EIA laws do not provide for a second EIA once the EIA has beenapproved. The aggrieved parties would perhaps have been more successful if they had challenged thegrounds of the decision of the Review Panel by filing an appeal under s 35(e) of the EQA.

Public Participation in the EIA Process in Sarawak

In the case of Sarawak, there is no avenue for public participation in the Preliminary EIA stage. Publicparticipation only comes at the Detailed EIA stage and even then it is not mandatory. According to theSarawak EIA Handbook, the need for public participation 'should be discussed during the formulation of thetechnical proposal of the Detailed EIA'36 and it ought to be included in the Detailed EIA process 'on theinitiative of the project proponent and where it affects public interest'.37 The Sarawak EIA Handbookrecommends public participation if it is likely to benefit the planning of the project in a number of ways andthese are identical to those set out in the federal EIA Handbook.

If the project proponent has invited public comment during the Detailed EIA stage, such comments must bereceived in writing by the Sarawak Natural Resources and Environment Board (NREB) within 30 days ofpublic notification by the NREB. Members of the public may have access to copies of the Detailed EIAReport at the NREB office.

From the language of the provisions in the Sarawak EIA Handbook, it is clear that public involvement in theEIA process is at the discretion of the project proponent. This is underscored by the following paragraph setout in the Sarawak EIA Handbook:38

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It is important to be selective when involving people in the EIA process. Generally three categories of participants arerequired to carry out an EIA:

-- those appointed to manage and undertake the EIA process (usually the team leader and a staff of experts);

-- those who can contribute facts, ideas or concerns to the study;

-- those who have direct authority to permit, control or alter the project, ie project proponent/developer, aidagency/investors, competent authorities, regulators, etc.

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The above quoted portion of the Sarawak EIA Handbook is a reproduction of Principle 2 of UNEP's basicprocedures for developing countries in implementing the EIA process (mentioned earlier in this paper) exceptfor one material particular. A portion of the UNEP version has been omitted from the second category ofparticipants in the EIA process mentioned above ie 'Those who can contribute facts, ideas or concerns ...'.While the Sarawak EIA Handbook stops there, the UNEP version continues as follows: '... includingscientists, economists, engineers, policy makers, and representatives of interested or affected groups'(emphasis added).39 With the omission of this part, a clear statement of public involvement has beenremoved. The remaining portion in the Sarawak version, ie 'those who can contribute facts, ideas orconcerns ...', leaves it deliberately vague and ambiguous as to who would eventually be consulted in the EIAprocess.

It is not surprising therefore that no public participation was allowed during the EIA Review process of theBakun Hydro-electric Power Project,40 a project of massive proportions never before undertaken in Malaysia-- it would have been the largest power plant in the country, the dam would have been the largest in thecountry as well as the highest of its type in the world and the undersea cables would have been the longestand highest capacity submarine cables in the world to transmit power.41 The Bakun Hydro-electric PowerProject EIA was the first to be considered under the new Sarawak EIA laws. For such a controversial andambitious project involving the displacement of almost 10,000 native inhabitants from their originalhomelands, it is indeed inconceivable that public participation was categorically denied even in the face ofrepeated requests by these communities to be heard before a decision was given on the EIA Report. Thefirst part of the EIA Report of the Bakun Hydro-electric Power Project entitled 'Detailed EIA for ReservoirPreparation' was only allowed to be displayed to the public after the Federal Cabinet directed the NREB todo

3 MLJ cxxxiv at cxlviso. Press reports indicate that the report was only displayed in three towns in Sarawak, interested personswere only given an hour to browse through the 318-page report, they were only allowed to copy its contentsby hand and were charged a cover price of RM150 for a copy of the report. A copy of the report available atthe DOE was not made accessible to the public.42 To-date, no cogent reasons have been given by theNREB for legally limiting public participation in this way, although such participation is internationallyaccepted as an integral part of the EIA process and is a requirement in the EIA practice for the rest ofMalaysia.

Locus standi

Given the inherent nature of the EIA process which relies on the involvement of all concerned parties in theevaluation of the impact of the activity on the environment of which people are an integral part thereof, theprovision for public participation assumes major importance. It must be remembered that EIA evolved notonly as a response to address the significant impact of development activities on the natural environment butalso because of the adverse impact of such environmental consequences on the human beings living inthose environments. The perception that people can be relocated from their original homelands seems to bean easily accepted alternative with not enough weight being attached to the far reaching consequences ofsuch displacement on these communities. The rest of this paper will focus on the response of the Malaysiancourts to the idea of public participation in the EIA process.

To-date, there have been two cases filed in the Malaysian courts directly with respect to EIA. The first case isAbdul Razak Ahmad v Ketua Pengarah Kementerian Sains, Teknologi dan Alam Sekitar.43 In this case, theplaintiff was a resident of Johor Bahru who objected to the 'floating city' project. He sought a declaration fromthe courts that he was entitled to the EIA Report of the project. The court granted him the declaration on theground that people affected by such projects have an interest to protect. Haidar J held that as a citizen ofMalaysia and as a resident of Johor Bahru, the plaintiff had a right to the EIA Report to determine to whatextent the project's impact on the environment would affect him specifically and the residents of Johor Baruin general and therefore the plaintiff had an interest to protect.

The second case is Kajing Tubek & Ors v Ekran Bhd & Ors.44 This case was filed by three native residentsof longhouse communities who would be dislocated by the Bakun Hydro-electric Power Project. The plaintiffscontended that they had been conferred the right to comment on the Bakun EIA Report by the EQA and the

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approval of the said EIA Report under the Sarawak EIA laws (which restricts public participation asdiscussed earlier

3 MLJ cxxxiv at cxlviiin this paper) was a breach of natural justice and/or impinging on their right to be heard. With respect to theright of the plaintiffs to participate in the EIA process and to comment on the Bakun Hydro-electric PowerProject EIA Report, the High Court held that:

Under the guidelines issued by the Director General, public participation in the form of obtaining a copy of the EIA,commenting thereon and making representation was explicitly provided. All these were to be complied with before thereview panel made its recommendation to the Director General who in turn takes into consideration theserecommendations before arriving at a decision. This process was therefore mandatory and any decision made by theDirector General without the above procedure being adhered to would be against the legal provisions of the EQA andits subsidiary legislation. With this, the entitlement to a copy of the EIA, commenting thereon by the public became aright and the plaintiffs were entitled to such rights.45

On appeal, the Court of Appeal in Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors andother appeals,46 held that the laws applicable to the Bakun Hydro-electric Power Project were the SarawakEIA laws and under these laws, there was no requirement for the respondents to be supplied with copies ofthe EIA Report. Mokhtar Sidin JCA reasoned that even assuming s 34A of the EQA applies, there is norequirement for the respondents to be supplied with copies of the EIA Report prior to its approval. Howeverthe learned judge conceded that the EIA Handbook:47

... clearly provides that an interested member of the public is entitled to the report if he applies for the report to besupplied to him on payment of a certain cost. He would not be given the report if he did not ask for it. There is noaccrued right that the report must be distributed to the public without the public asking for it.

While the abovementioned cases are clear on the point of the right to the EIA Report, they also establish thatonly those who have a legal interest to protect are entitled to such a right and this brings into question theissue of locus standi.48 The High Court in the Kajing Tubek case took an enlightened view of the plaintiffs'locus standi to bring the action. Justice James Foong noted and followed legal principles established in twoof the leading

3 MLJ cxxxiv at cxlviiiMalaysian authorities on the issue of locus standi -- Government of Malaysia v Lim Kit Siang49 and Tan SriOthman Saat v Mohamed bin Ismail,50 -- and decided that:51

... the plaintiffs are natives to the area affected by the Bakun HEP. They have claimed that their homes and land will bedestroyed, their lives uprooted by the project and they will suffer far more greatly and directly than other members ofthe public. To them, 'our land and forest are not just a source of our livelihood but constitute life itself, as they arefundamental to our social, cultural and spiritual survival as native people.' This itself, in the opinion of this court, issufficient to justify the plaintiffs having a substantial or genuine interest to have a legal position declared.

The learned High Court judge also contended that 'even though the statutory provision in this casesubscribes to a criminal offence which provides for a penal remedy':52

... These sufferings and damages (sic) definitely are 'particular, direct and substantial' to the plaintiffs themselves,which are obviously different and apart from what other members of the public would suffer. The plaintiffs may only bethree of a community of 10,000 but, as uttered earlier, numbers is not the criteria for granting or refusal of declaratory

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relief. What is fundamental is that the plaintiffs themselves have in this case suffered specific, direct and substantialdamages caused by the Bakun HEP.

The Court of Appeal, however took a more restricted view and denied the native residents locus standi toraise this matter in the courts for the following reasons:53

... (a) the respondents were, in substance, attempting to enforce a penal sanction. This was a matter entirely reservedby the Federal Constitution to the Attorney General of Malaysia in whom resided the unquestionable discretion whetherto institute criminal proceedings; (b) the complaints advanced by the respondents amounted to deprivation of their livesunder art 5(1) of the Federal Constitution. Since such deprivation was in accordance with the law, ie (sic) the LandCode (Sarawak Cap 81), they had on the

3 MLJ cxxxiv at cxlixtotality of the evidence suffered no injury and there was thus no necessity for a remedy; (c) there were persons, apartfrom the respondents, who were adversely affected by the project. There was no special injury suffered by therespondents over and above the injury common to others. The action commenced by the respondents was notrepresentative in character and the other affected persons were not before the court; ...

The position taken by the Court of Appeal is not surprising given the trend of decisions by Malaysian courtson the issue of locus standi. There are three important cases on locus standi in Malaysia, two of which -- LimCho Hock v Government of State of Perak, Menteri Besar, State of Perak and President, Municipality ofIpoh54 and Tan Sri Othman Saat v Mohamed bin Ismail55 -- represent the:56

... high water marks of the law on locus standi in Malaysia, beyond which the court should be careful to tread. Boththese cases can be justified on the basis that the plaintiff had a genuine private interest to be furthered and protected.(Emphasis added.)

The third important case is Government of Malaysia v Lim Kit Siang. In this case, the Supreme Court by anarrow margin of three to two, drew the line on the development of the law on locus standi in Malaysia anddenied the plaintiff locus standi. Since then, where a plaintiff has sought to claim a remedy by asserting apublic interest or right, the Malaysian courts have not been innovative and have tendered to adopt a ratherrestrictive attitude. The majority of the judges in the Lim Kit Siang case held that where a statute creates acriminal offence but no civil remedy, the Attorney General is the guardian of the public interest and it is healone who can enforce the law. No other person can enforce the criminal law unless his private right hasbeen interfered with, or he has suffered special damage peculiar to himself.57

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In the above-mentioned case, the respondent, Lim Kit Siang, filed an action as a Member of Parliament,Leader of the Opposition, road and highway user and a taxpayer. He asked the court for a declaration thatthe letter of intent issued by the government to a private company, United Engineers (M) Bhd (UEM), inrespect of the North and South Highway contract was invalid and for a permanent injunction to restrain UEMfrom signing the contract with the government. He alleged criminally corrupt practices, and bias on the part ofthe Cabinet Ministers involved in the selection of the private company for the project. While the majority ofthe judges denied standing to the respondent, the two dissenting judges were of the opinion that standing 'isa rule of practice and procedure laid down by judges in the public interest. Like all rules of practice, they areliable to be altered by the judges to suit the changing times.'58

On the role of the Attorney General as the guardian of the public interest, Abdoolcader SCJ said:59

The contention of the apellants is that in matters such as that before us it is only the Attorney General himself moving

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suo motu or by the grant of a fiat for a relator action who has the right to challenge and can take action and no other. Iwould think it would be too much to expect process of this nature involving the ventilation of a public grievance toproceed only through this channel, given even the fortitude the incumbent of the office would presumably be endowedwith, in view of the rebound where the complaint is against the Government itself and the Attorney General is its legaladviser, as it would surely be expected that if the complaint merited action by the Attorney General or by his fiat to arelator, he would himself in the first instance have had the cause of complaint aborted before its overt manifestation.For the Attorney General to have to proceed himself or by relation in such a case would only be a deplorable andintolerable reflection as in the normal course of events such a situation would and should never be allowed to arise,and so the question of a relator action must necessarily remain attractive as a theoretical possibility with no conceivablehope generally for practical purposes of advancing to concrete action beyond that.

Apparently this argument did not appeal to the learned judges of the Court of Appeal in the Kajing Tubekcase, as they preferred to follow the reasoning of the majority judges in the Lim Kit Siang case.

The Court of Appeal's decision in the Kajing Tubek case was also disappointing with respect to their decisionto deny locus standi on the ground that a substantial number of persons whose rights were equally affectedby the Bakun Hydro-electric Power Project were not before the court. GS Nijar, a learned writer, rightly pointsout that:60

The ruling of the Court of Appeal would imply that if a large number of people are peculiarly and especially affected bythe interference of the public right, then unless a substantial number of them are before the court, the few should

3 MLJ cxxxiv at clibe denied standing to sue. This in effect means that the many can, either willfully or through apathy, stultify the actiontaken by the more vigilant or alert members of the community.

These narrow and restrictive decisions of the Malaysian courts on the issue of locus standi havecompounded the difficulties of aggrieved parties to get past the hurdle of locus standi. This is in addition toother obstacles such as access to information, documents and legal procedural and evidential formalities.Malaysia is generally a non-litigious society. Yet, it is surprising that the courts, instead of taking a liberalview of standing, chose in many instances to present such 'technical' obstacles in the way of hopeful litigantswho in the main were of the public interest variety.61 In contrast to the above stance, there are two cases,discussed below, which present a refreshing change in judicial attitude towards the rights of some membersof a community to represent the collective interests of that community in the courts. Although both thesecases would not clearly fall within the realm of enforcing a public interest or a criminal offence, neverthelessthe decisions of these courts especially with respect to affording collective interests an opportunity toventilate their claims in the courts is most welcome.

In the case of Jok Jau Evong v Marabong Lumber Sdn Bhd,62 which preceded the Kajing Tubek case, theplaintiffs were three members of the Kayan community in Sarawak who had been granted native land rightsover an area of protected forest by the colonial government via a proclamation under the Forests Ordinance.When they found their land being logged by a timber company, under a licence granted by the stategovernment, they filed a representative action in the High Court claiming various declarations andinjunctions. It is interesting to note that the High Court held that the plaintiffs could bring a representativeaction even though they were only representing one group of residents through the Uma Bawang ActionCommittee and the other group was led by the Tua Kampong who had aligned themselves with thedefendants. Haidar J quoted and followed the dictum of Lord MacNaughten in Bedford (Duke) v Ellis63 withrespect to representative actions as follows:64

If the persons named as plaintiffs are members of a class having a common interest, and if the alleged rights of theclass are being denied or ignored, it does not matter in the least that the nominal plaintiffs may have been wronged orinconvenienced in their individual capacity ... Given a common interest and a common grievance, a representative suitwas in order if the relief was in its nature beneficial to all whom the plaintiffs proposed to represent.

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3 MLJ cxxxiv at clii

In the case of Adong bin Kuvaw & Ors v Kerajaan Negeri Johor &Anor,65 the 52 plaintiffs were heads offamilies representing a group of aboriginal people living around the Sungai Linggiu catchment area near KotaTinggi, Johor. The land they were occupying was acquired by the state government for the construction ofthe Sunggai Linggiu Dam. The plaintiffs contended that under common law and statutory law, they hadproprietary rights over the land as aboriginal people and therefore they came within the ambit of art 13(1) ofthe Federal Constitution. Since their rights were taken away by the defendants, they were therefore entitledto compensation pursuant to art 13(2) of the Federal Constitution. The High Court ruled in favour of theplaintiffs and awarded them compensation to the tune of RM26.5m. It must be noted that not only was locusstandi of the plaintiffs not raised, the court in fact, held that the plaintiffs' rights both under common law andstatutory law are proprietary rights protected by art 13 of the Federal Constitution and that they haveproprietary rights over the Linggiu valley, ie 'the right to move freely about their land, without any form ofdisturbance or interference and also to live from the produce of the land itself' and 'the right to live on theirland as their forefathers had lived and this would mean that even the future generations of aboriginal peoplewould be entiltled to this right of their forefathers'.66 Mokhtar Sidin JCA found that:67

For a case involving the plaintiffs, I would state that the plaintiffs had suffered deprivation of the following types ofinterest in the land:

(1) deprivation of heritage land;(2) deprivation of freedom of inhabitation or movement under art 9(2);(3) deprivation of produce of the forest;(4) deprivation of future living for himself and his immediate family; and(5) deprivation of future living for his descendants.

On appeal to the Court of Appeal, it was held that although the land in question had not been declared anaboriginal area or aboriginal inhabited place under the Aboriginal Peoples Act 1954 (Revised 1974) (Act148):68

... the respondents' case is not based upon a claim that the land in question was an aboriginal area. They rely upon theabsence of anything in the Act that excludes their common law rights to derive their livelihood from land which is an'aboriginal inhabited place'.

The Federal Court has since upheld the decision of the Court of Appeal but is yet to present its writtenjudgment.

3 MLJ cxxxiv at cliii

Conclusion

It is understandable that competing interests are at stake in the EIA process. On the one hand is the projectproponent - a commercial undertaking, or the local, state or federal government intending to use theenvironment for a particular private or public purpose. On the other hand are the people living in thatenvironment who will face the impact of the project directly either by some inconvenience or bydisplacement. There are also those members of the public who may not be directly affected but neverthelesshave a compelling interest to conserve the environment. What is a beneficial effect to one party may be adetrimental effect to another. The EIA process must therefore provide for an equitable evaluation of all thecompeting interests at stake and the current EIA laws as reviewed above do not provide for this. Ethically,the EIA process must ensure that there is no wanton destruction of the environment and any damage that is

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predicted must be adequately mitigated. The environment here means not only the physical environment butthe people living in that environment and the generations to come who will be affected by the damage thathas been done to that environment. It is ethically and conceptually wrong for the people whose interests areaffected by a particular project not to have equal access to the decision-makers in putting forward theirconcerns and comments. Currently, it is the project proponents who have an overwhelming opportunity toinfluence the decision-making process simply by virtue of the fact that the EIA process (from thecommissioning of the EIA consultant to the distribution of the EIA Reports)69 is wholly financed by them.While it is accepted that the costs for the EIA should be borne by the project proponent, it does notnecessarily follow that the project proponent consequently should have better access and more opportunityto influence the decision-making process, while the public have restricted access and less opportunity to doso. This is even more so given the trend of decisions of the Malaysian courts where the right of the individualpublic-spirited citizen or collective interests to enforce public rights in the courts have been severely limited.As aptly put by Kiew:

The system in play tends to favour the influential and powerful, and, in fact, the constitution of the country and the lawof the land clearly favour the majority and the sector of the community in power.70

For all the foregoing reasons, it is submitted that the current federal EIA laws do not protect the right of theMalaysian public to participate in the EIA process effectively and the situation in Sarawak is even worse. It issubmitted that s 34A of the Environmental Quality Act 1974, and s 11A of the Natural Resources andEnvironment Ordinance 1993 should clearly and unambiguously provide for the right of participation ofindividuals and communities directly affected by proposed projects in the EIA process and

3 MLJ cxxxiv at clivthat no EIA Report shall be approved by the Director General of Environment until and unless suchcomments have been received and considered before a decision is made. The federal EIA Handbook andthe Sarawak EIA Handbook should also be amended accordingly to provide for guidelines for suchparticipation to take place in a manner that is conducive for the affected communities to present their views.Perhaps in this regard, the public service should cast aside their presently benign role of sitting back andwaiting for public comments and truly become servants of the people - it is about time the law requiresplanners and decision-makers to go to the people, rather than the other way around!

1 Parts of this paper are adapted from Kanniah, Rajeswari, An Analysis of the Laws Relating to Environmental ImpactAssessment in Malaysia with Specific Reference to Federal-State Jurisdiction, LLM dissertation, Law Faculty, University ofMalaya, Kuala Lumpur, 1999. Environmental Quality (Amendment) Act 1985 (Act A636).

2 Section 34A(2) states: '... The report shall be in accordance with the guidelines prescribed by the Director General ...' JusticeJames Foong in Kajing Tubek & Ors v Ekran Bhd & Ors[1996] 2 MLJ 388 (High Court) said: '... the Guidelines become asubsidiary piece of legislature (sic) when published by the Director General' (at p 407); and ' This process is, thereforemandatory and any decision made by the Director General without the above procedure being adhered to will be against thelegal provisions of the EQA and its subsidiary legislature(sic).' (at p 407).

3 Apart from the EIA Handbook, there are at least 20 other guidelines issued by the Director General of Environmentprescribing the procedures for EIAs for specific sectors.

4 Sabah has enacted legislation on EIA, ie s 5(1) of the Conservation of Environment Enactment (No 14 of 1996), but has yet toenforce it.

5 Department of Environment, A Handbook of Environmental Impact Assessment Guidelines, (1995), 48.

6 The prescribed activities have been classified under the following headings: Agriculture; Airport; Drainage and Irrigation; LandReclamation; Fisheries; Forestry; Housing; Industry; Infrastructure; Ports; Mining; Petroleum; Power Generation andTransmission; Quarries; Railways; Transportation; Resort and Recreational Development; Waste Treatment and Disposal andWater Supply.

7 The prescribed activities have been categorized under the following headings: Agricultural Development; Development of

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Commercial, Industrial and Housing Estates; Activities which may pollute inland water or affect sources of water supply;Fisheries and activities which may endanger marine or aquatic life, plants in inland waters or erosion of river banks; Extensionand removal of rock materials and mining; Any other activities which may damage or have an adverse impact on quality ofenvironment or natural resources of the state.

8 These are development of golf courses, hillslopes, former mining land, landfills and 'sensitive areas' which include coastalzones. The Minister of Science, Technology and the Environment has recently announced that the Attorney General'sChambers has been requested to look into amendments to the Environmental Quality (Prescribed Activities) (EnvironmentalImpact Assessment) Order 1987 to include three of these activities, ie development in golf courses, hillslopes and sensitiveareas: Surin, Jacqueline Ann, 'Ministry Seeks to widen EIA Scope', The Star, 29 March 2000, 18.

9 Set up under art 91 of the Federal Constitution, the National Land Council is composed of the federal government and thestate governments to formulate national policies relating to land used for mining, agriculture, forestry and any other purposes(see art 91(5), Federal Constitution). Only the states of Sabah and Sarawak do not have voting rights and need not followpolicies of the National Land Council.

10 Yeater, Marceil and Lal Kurukulasuriya, 'Environmental Impact Legislation in Developing Countries', in UNEP's New WayForward: Environmental Law and Sustainable Development, (Ed Sun Lin), (1995), 258.

11 Sheate, WR, 'Public participation: The Key to Effective Environmental Assessment', Environmental Policy and Law,(1991:21), 156-160.

12 Wood, Christopher, Environmental Impact Assessment --A Comparative Review, (1995), 230.

13 Goals and Principles of Environmental Impact Assessment, Decision 14/25 of the Governing Council of UNEP, 17 June1987.

14 United Nations Environment Programme, Environmental Impact Assessment - Basic Procedures for Developing Countries,(1988), 6.

15 Wood, op cit, 10.

16 Section 1.6.1, Department of Environment, (1995), op cit, 11.

17 Section 2.4.5, Id. 24.

18 Section 1.5.3 states 'Some form of public participation is mandatory', Id. 8.

19 Section 1.4.5, Id. 6.

20 Section 2.4.5, Id. 24.

21 Section 1.4.5, Id. 7.

22 Section 3.4.4, Id. 31.

23 Department of Environment, Malaysia Environmental Quality Report 1996, (1997), 50.

24 Id. 51.

25 Department of Environment (1997), loc. cit.

26 Para 3.4.7, Department of Environment, (1995), 32.

27 Project proponents are required to bear the cost of preparation of terms of reference, public announcements, cost of thereview process including honorarium for members of the Review Panels, Department of Environment (1997), op cit, 51.

28 Para 3.4.7, Department of Environment, (1995), op cit, 34.

29 Para 4.5, Id. 37.

30 Department of Environment, Malaysia Environmental Quality Report 1997, (1998), 60. It is not clear whether this refers to 16comments for all nine Detailed EIA Reports or 16 comments for each of the nine Detailed EIA Reports.

31 Department of Environment, Environmental Quality Report 1991, (1992), 130.

32 Tan, Cheng Li and SS Yoga, 'Dam EIA draws flood of response', The Star, 20 April 1999, Section 2, 4.

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33 In the case of the Sungei Selangor Dam EIA Report, the DOE made the report available at the DOE headquarters in the citycentre, its offices in all states, the Selangor Public Library and the Hulu Selangor District Council. There were complaints fromthe public that the report should be more accessible to the public. The Director General aknowledged that 'such places mightnot be accessible to some people' and pledged to correct the situation. Lau, Leslie and Foo Yee Ping, 'DOE Pledges to MakeEIAs More Accessible', The Star, 8 March 1999, 6.

34 Para 3.4.7, Department of Environment, (1995), op cit, 34.

35 In the case of the Bakun Hydro-electric Power Project, the EIA Report was not made available to the public, even after it wasapproved, because the project was subject to the Sarawak EIA procedures which does not require EIA Reports to be madepublic. Finally, it was the Federal Cabinet that gave the approval for the report to be made public.

36 Natural Resources and Environment Board, A Handbook of the Policy and Procedure of Environmental Impact Assessment(EIA) in Sarawak, (1995), 20.

37 Id. 19.

38 Id. 25.

39 United Nations Environment Programme (1988), op cit, 6.

40 At the material time, the Bakun Hydro-electric Power Project involved the construction of a reservoir on a site measuring69,640 hectares with a dam of 205 metres high, with overland transmission cables covering a distance of 455 km and underseacables covering 650km. Other supporting infrastructure were an airport, a 125 km road from Bintulu to the dam site, hostels andhotels and a 10,000-hectare industrial park. However, the economic downturn in October 1997 eventually forced the federalgovernment to defer and later downsize the project.

41 Ekran Berhad, Prospectus (16 April 1997), 41.

42 Surin, Jacqueline Ann, 'EIA Report on Bakun Project Declassified', The Star, 22 June 1996; Surin, Jacqueline Ann, 'DOE NotAllowed' to display EIA', The Star, 7 July 1995, 6.

43 [1994] 2 CLJ 363.

44 [1996] 2 MLJ 388.

45 Id. 390.

46 [1997] 3 MLJ 23.

47 Id. 55-57.

48 Seah SCJ explains the concept of locus standi succintly thus: 'The Latin phrase "locus standi" as used by the courts inEngland, or "standing in courts" as the term is commonly understood by the lawyers in the United States of America, seems toindicate that a person is allowed by the judges to appear and be heard in a legal proceeding. It is a procedural barrier erectedby the judges to prevent the court's time and public money from being wasted by multiplicity of frivolous and vexatious litigationbrought by busybodies whose actions are bound to fail in limine and also to prevent abuse of legal process.' ( Government ofMalaysia v Lim Kit Siang[1988] 2 MLJ 12 at p 33).

49 [1988] 2 MLJ 12.

50 [1982] 2 MLJ 177.

51 Kajing Tubek & Ors v Ekran Bhd & Ors[1996] 2 MLJ 388, 399.

52 Id.401. The learned judge had earlier quoted Viscount Radcliffe in Ibeneweka v Egbuna[1964] 1 WLR 219 (at p 226): '...there has never been any unqualified rule of practice that forbids the making of a declaration even when some of the personsinterested in the subject of the declaration are not before the court...Where, as here, the defendants have decided to makethemselves the champions of the rights of those not represented and have fought the case on that basis, and where, as here,the trial judge takes the view that the interested parties not represented are in reality fighting the suit, so to say, from behind thehedge, there is, in their Lordships' opinion, no principle in law which disentitles the same judge from disposing of the case bymaking a declaration of title in the plaintiffs'favour.'

53 Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors and other appeals [1997] 3 MLJ 23, 25.

54 [1980] 2 MLJ 148.

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55 [1982] 2 MLJ 177.

56 Per Salleh Abas LP in Government of Malaysia v Lim Kit Siang[1988] 2 MLJ 12, 24. See also District Council Central,Province Wellesley v Yegappan [1966] 2 MLJ 177 and Lee Freddie & Ors v Majlis Perbandaran Petaling Jaya & Anor [1994] 3MLJ 640.

57 The Supreme Court relied on developments on locus standi in the English courts prior to the statutory reforms of Englishadministrative law remedies in 1981 and held that later English developments were inapplicable by virtue of the Civil Law Act1956 (Revised 1972) (Act 67). 'The rule as to locus standi applicable in Malaysia is that accepted in England before theenactment of O 53 of the English Rules of the Supreme Court. Since we have not accepted O 53 and its statutory underpinning(ie s 31 of the Supreme Court Act) there is no justification to depart from the rule of locus standi accepted by the highest courtof England prior to O 53. The rule is as stated by Buckley J in Boyce v Paddington Borough Council, as accepted by the Houseof Lords in Gouriet v Union of Post Office Workers &Ors.' (Government of Malaysia v Lim Kit Siang[1988] 2 MLJ 12).

58 Id. 14.

59 Id. 45.

60 GS Nijar, 'The Bakun Dam Case: A Critique' [1997] 3 MLJ ccxxix, ccxlix.

61 See Abdul Razak Ahmad v Kerajaan Negeri Johor[1994] 2 MLJ 297; Abdul Razak Ahmad v Majlis Bandaraya JohorBaru[1995] 2 AMR 1174; Trustees of Leong San Tong Khoo Kongsi (Penang) Registered v Poh Swee Siang [1987] 2 MLJ 611;Woon Tan Kan v Asian Rare Earth Sdn Bhd[1992] 4 CLJ 2207.

62 [1990] 2 CLJ 625.

63 [1901] AC 7.

64 Jau Jok Evong & 2 Ors v Marabong Lumber Sdn Bhd & 2 Ors [1990] 2 CLJ 625, 630.

65 [1997] 1 MLJ 418.

66 Adong bin Kuvow & Ors v Kerajaan Negeri Johor &Anor [1997] 1 MLJ 418, 430.

67 Id. 436.

68 Kerajaan Negeri Johor, Pengarah Tanah dan Galian Johor dan Adong bin Kuvaw dan 51 Orang Lagi ( Government of Johorv Adong bin Kuvaw): Civil Appeal No 24-828-94 High Court, Malaya at Johor Baru (unreported).

69 Supra, n 22.

70 Kiew Bong Heang, 'Environmental Impact Assessment - Ideals, Realities and Ethics', The Malayan Naturalist, Vol 50 No 1Dec 1996, 30, 32.

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