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Sunday, September 16, 2012

Federal Court says 'No' to Bukit Koman but struggle can go on

Well, the residents of Bukit Koman lost at the Federal Court - and worse, they were also required to pay cost of RM15,000.

In short, this was an application for extension of time to file an application challenging the  Department of Environment director-general's (DG) approval of a preliminary environmental impact assessment (PEIA) report submitted by a gold mining company.

The court rules say that you must file the application in court within 40 days

And, I feel the stringent following of procedural requirements as contained in court rules is not JUST - for I believe that the community hear have a valid right to challenge this approval  for after all there is perceived health concerns, and should not the courts just hear their application on the merits rather than shutting their access to court using 'technical points' - in this case, the time for challenging the approval has passed.... 

Is this not a 'Public Interest Litigation'? Should not the courts be interested in ensuring justice be done ...and seen to be done. 

All that the people were asking was an 'extension of time' so that they could file the application asking the court to review the correctness of the approval of the DG of Environment.. So, if I were the judge, I will say 'OK....extension granted' - and will let these people bring their matter to court - and the Court will justly consider whether the said DG made the correct decision or not...

Maybe, the residents need to re-consider and file another suit .... (Hopefully, they have not lost faith in the Malaysian courts and the government...and 'give up'..)

Legal challenge is one option - but the government can also ACT for and on behalf of the people....(i.e. if it cares for the people)

Now - they have their operating license.... BUT then do they not need other permissions from the Local Council, ...from the State,...Surely, their mining operation is not solely reliant on the permission of the DG of Environment ... Should not the Ministry of Health also be involved - is this not an issue of public health...and health concerns? I am just wondering....so maybe the people of Bukit Koman may have other options when it comes to action....

Should the Raub Gold Mine be closed? Is their operations affecting the health of the Bukit Koman Community, or is a health risk? The people there seem to believe that gold mining using cyanide is affecting their health and the environment - the mining company disagrees. There certainly is a 'dispute', and in such cases it is best for the court (or even a 'caring government') to intervene and get to the truth.

Updated: Thursday September 6, 2012 MYT 7:23:47 PM

Bukit Koman residents lose legal battle


PUTRAJAYA: The villagers of Kampung Bukit Koman in Raub lost their legal battle at the Federal Court, here, on Thursday to challenge the Department of Environment director-general's (DG) approval of a preliminary environmental impact assessment (PEIA) report submitted by a gold mining company.

A five-member panel led by Court of Appeal president Tan Sri Md Raus Sharif unanimously dismissed the appeal brought by the villagers who wanted the Federal Court to grant them permission (leave) to initiate a judicial review application to challenge the DG's decision.

Justice Raus ruled that the villagers were guilty of delay in filing their leave for judicial review application.

He said the villagers also did not provide good reasons to be granted extension of time to enable them to file their application.

Order 53, Rule 6 of the Rules of the High Court 1980 states that an application for leave for judicial review shall be made promptly 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 panel, also comprising Federal Court judges Tan Sri Abdull Hamid Embong, Datuk Ahmad Maarop, Datuk Hasan Lah and Datin Paduka Zaleha Zahari ordered them to pay RM15,000 in legal costs.

The court also answered the sole legal question posed, in the negative.

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.

Justice Raus also said two decisions of the Federal Court Mersing Omnibus Co Sdn Bhd vs Minister of Labour and Manpower and Ravindran vs Malaysian Examination Council which held that the merits of the case would not be dealt with when seeking for extension of time to file a judicial review was a good law as those cases were decided on the exercising of the court's discretion.

Lawyer Malik Imtiaz Sarwar, representing the villagers, contended that the decision in those two cases ought to be reversed.

Lawyer Tan Sri Cecil Abraham, representing Australian Raub Australian Gold Mining Sdn Bhd (RAGMSB), told reporters that following the court's verdict, RAGMSB could continue with the mining and that the judicial review had ended.

Meanwhile, Malik said although the Federal Court had been conservative in its decision, he respected the decision, adding that the villagers would have to consider other options. 

The DG approved the PEIA report on Jan 13, 1997. Via a letter dated Feb 21, 2008, the DG declined to accede to the residents' request to review the PEIA and to 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 another person (who died early this year) filed leave to initiate a judicial review application naming the Environment DG and RAGMSB.

The villagers who claimed to have suffered health problems from the use of cyanide in a gold mine, wanted the 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 of, and also contained inadequate information on discharge of effluents.

The High Court refused to grant leave to the villagers to initiate 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.

They also lost their appeal at the Court of Appeal. On Jan 11, this year, the Federal Court granted them leave to appeal against the High Court's decision to the Federal Court. - Bernama - Star, 6/9/2012, Bukit Koman residents lose legal battle


Related Earlier Post:

15,000 turned up in Raub and today Federal Court case

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