Written by: Averroes
(1.0) Introduction
The Penang South Islands' (PSI) reclamation project, formerly known as the Penang South Reclamation Project (PSR) had their Environmental Impact Assessment (EIA) hatched after a legal decision, after an appeal was submitted.
The original PSR project spanned a size of 17sq km, a development of three artificial islands of about 1,700 hectares in the waters of Permatang Damar Laut, near Bayan Lepas. It was implemented as a funding module of the Penang Transport Master Plan (PTMP) worth RM45 billion.
In affect, it would save countless of livelihoods of anglers, source their sustenance and rely on the ocean at the proposed project site. If the project were to continue, it would be difficult for them to be the breadwinners of the family and make ends meet for their families and selves.
Lead counsel for Zakaria, (the appellant) commented that it more than a moral victory for the fisher folk, but also for civil societies which have been supporting the fishermen. The proposed area is supposed to be sustainable for the ecosystem and those inhabiting the surrounding area.
Apropos of that, the Penang State Government is planning to file a judicial review from the decision of the Appeal Board of the Department of Environment. If any further action is taken, all NGOs and Penang residents will continue the painstaking effort to protect their rights.
Also, fundamental issues related to the socio-economic and EIA was not properly debated, according to chairman of Pertubuhan Badan Pemikir Melayu, Datuk Dr. Muhamad Farid Saad. While approving the EIA, they should listen and take note of the concerns of NGOs and others.
(2.0) Legal Chronology
The preliminary objection of appeal was instituted by Zakaria Ismail, who was the head of the fisherman's unit of Sungai Batu. The said objection was then approved by the Department of Environment (DoE or the respondent) to set aside the EIA. The DoE Director-General himself, Wan Abdul Latiff Wan Jaffar affirmed of the Appeal Board's decision.
Meenakshi Raman, lead counsel for Zakari assisted in having a legal appeal on the issue of the EIA report. Zakari filed a Notice of Appeal as under section 35(1)(e) of the Environemntal Quality Act 1974 (EQA). It was to challenge the approval of the EIA by the DoE Director-General on the proposed 4,500 acre reclamation project of PSR in the Appeal Board of DoE.
The Appeal Board of DoE is considered to be transparent and political free, as they are nominated by the Chief Justice with certain requirements. It is a quasi-judicial body not connected with the Malaysian court hierarchy jurisdiction. Hence, mature, free and independent. The members of the Appeal Board consisted of the Sessions Court judges, Rozina Ayob, Prof. Datuk Mazlin Mokhtar and Associate Professor Ramdzani Abdullah.
They found that the EIA was ultra vires, null and void as pursuant to section 34A(4)(a) of the EQA, because the EIA was not convincing to prevent, reduce or control the adverse impact on the environment. In a nutshell, the Penang State Government could not proceed with the reclamation project.
In order to have the project resumed, then they would have to submit a new EIA report which does not contravene section 34A(4)(a) of EQA. In the Appeal Board, there were four issues to be determined, which are;
(a) Whether it was mandatory for the DG to consider the EIA report to be connected with the approved development plan?
(b) Whether the EIA report at the time violated the Penang Structure Plan 2020?
(c) Whether the draft RSNPP2030 (Rancangan Struktur Negeri Pulau Pinang 2030) relied by DoE was sufficient to give DG his approval power?
In answering the issue (c), the lead counsel submitted that it was not sufficient for the DoE (respondent) to approve the EIA based on the RSNPP2030, because it was not a development plan within the ambit of the provision, as of yet.
It is still a 'Draft' Structural Plan, not yet assented by the State Authority (Governor) which is required under section 10(6) of the Town and Country Planning Act 1976 for it to be legally binding and enforceable. It was a premature one, since the Penang Structure Plan 2020 was still intact.
While filing the Notice of Appeal on July 29 2019, the Governor only assented the RSNPP2030 on 28th August 2019 and subsequently published in the gazette on 24th October 2019, which is late. They approved the EIA, even before the RSNPP2030 was enforceable at all. For any other grounds or merits in the appeal, the Appeal Board did not consider them however.
(3.0) Conclusion
To conclude, every development projects must ensure that it is aligned with the EQA 1974 statute and that the Director-General when approving EIA that is required under that law, must take into consideration of other factors, such as city and town plans. Since the plans were only drafts, and does not have any legal weight, the EIA was null, void and ultra vires.
The author applaud the Appeal Board decision, and an updater or refined version of an EIA is required. Modernisation and urbanisaiton is inevitable, but should be sustainable to foster the interests of the general public. Also, more quasi-judicial bodies should be politically free and independent in their memberships.
Also, the EIA has to be precise and comprehensive, which must preserve as well as protect the ecosystem and the livelihood of the people. For now, the world is under threat of rising global temperatures, scattered plastic wastes in the oceans, and even small particles of plastics in our stomache after consuming seafood.
People whose lives for many generations relied on the ecosystem is an important aspect in EIA, if not, they are unable to succour themselves in such times of penury. Their only source and place of income is destroyed, what other alternatives to they have?
For more information on EIA and its application, you may read here, which the author explained on the EIA related to the Kulim International Airport and how it could possibly disrupt water supplies in the area.
(4.0) References;
Audrey Dermawan. (September, 2021) Massive reclamation project on hold after fisher folk win appeal. Retrieved from, https://www.nst.com.my/news/crime-courts/2021/09/725448/massive-reclamation-project-hold-after-fisher-folk-win-appeal?topicID=22826&articleID=725448
Audrey Dermawan. (September, 2021) DoE accepts Appeal Board's decision on EIA cancellation for Penang reclamation project. Retrieved from, https://www.nst.com.my/news/nation/2021/09/726112/doe-accepts-appeal-boards-decision-eia-cancellation-penang-reclamation?topicID=1&articleID=726112
Malay Mail. (September, 2021) PAS urges Penang govt to cancel reclamation project after EIA approval revoked. Retrieved from, https://www.malaymail.com/news/malaysia/2021/09/10/pas-urges-penang-govt-to-cancel-reclamation-project-after-eia-approval-revo/2004533
Bernama. (September, 2021) PSR project is sunk unless new report is submitted. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/09/10/psr-project-is-sunk-unless-new-report-is-submitted/
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