GEORGE TOWN: Fisher folk, likely to be affected by the Penang South Islands' (PSI) reclamation project, scored a major victory after they won an appeal to revoke the environmental impact assessment (EIA) approval of the controversial project.
The PSI project was previously known as the Penang South Reclamation (PSR) project.
This came after the preliminary objection by Zakaria Ismail, head of the fishermen's unit of Sungai Batu, was allowed and approval by the Department of Environment (DoE) on the PSR's environmental impact assessment (EIA) was set aside.
The EIA was found to be ultra vires, null and void of Section 34A(4)(a) of the Environmental Quality Act 1974.
Announcing the decision today, Zakaria's lead counsel Meenakshi Raman told the New Straits Times that the decision on the matter was a significant one.
"We see this as more than a moral victory not only for the fisher folk but also for civil societies which have been supporting the fishermen.
"This means the state can't proceed with the reclamation project for now," she said.
Should the state decide to proceed with the project, they will have to apply for a fresh approval of the project's EIA.
According to Meenakshi, Zakaria filed a Notice of Appeal on July 29, 2019, under section 35(1)(e) of the Environmental Quality Act 1974 (EQA 1974), appealing against the decision of the DoE Director-General on June 25 last year, which is a conditional approval of the EIA for a 4,500-acre reclamation project called the PSR.
The Appeal Board heard the arguments on the preliminary issue that was raised by Zakaria's lawyers under Section 34A(4)(a) EQA 1974.
Section 34A(4)(a) states:
"If the DG, on examining the report (which refers to the EIA) and after making such inquiries as he considers necessary, is of the opinion that (a) the report is not in accordance with the development plan or physical plan approved by the relevant approving authority, he shall not approve the report, giving reasons for not approving, and shall inform the person and the relevant approving authority accordingly".
The Appeal Board considered the following issues:
(a) Whether it was mandatory for the DG when considering the approval of the EIA report to ensure that it was in accordance with the approved development plan?
(b) Whether the EIA at the time of the approval was in violation of the Penang Structure Plan 2020?
(c) Whether the decision of the approval of the draft RSNPP2030 (Rancangan Struktur Negeri Pulau Pinang 2030 – Penang Structural Plan 2030) by the State Planning Committee on March 14, 2019, which was relied upon by the DoE was sufficient for the DG to give his approval.
Meenakshi said the Appeal Board held that it was mandatory for the DG to comply with Section 34A(4)(a) EQA 1974 in approving the EIA report.
She said the approval of the EIA report was ultra vires of Section 34A(4)(a) EQA 1974 and the decision of the DG was invalid and therefore null and void.
She added that the approved draft RSNPP2030 by the State Planning Committee relied upon by the Respondent (DoE) was not sufficient for the purposes of Section 34A(4)(a) EQA 1974.
"It was not the development plan within the ambit of the section and it continued to remain a draft Structural Plan as it had not been assented to yet by the State Authority (which is the Governor) which is required under Section 10(6) of the Town and Country Planning Act 1976, for the draft to become legally effective.
(The Governor only gave his assent to the 2030 Structural Plan on Aug 28, 2019 and the RSNPP2030 was published in the gazette on Oct 24, 2019).
"Hence it was premature for the respondent to rely on the RSNPP2030 as the relevant plan at that time was the Penang Structural Plan 2020," she said.
Meenakshi said the Appeal Board also looked at whether they had the power to regularise and cure this defect and concluded that Section 35(2) of the EQA 1974 had to be read together with the Rules of Court 2012.
The Appeal Board further held that they did not have the inherent powers to cure and regularise this defect.
"The preliminary objection by Zakaria (the appellant in this matter) was therefore allowed and the approval of the DoE DG on the PSR EIA is now set aside as it was ultra vires, null and void of Section 34A(4)(a) of the EQA 1974.
"The Appeal Board did not need to consider any other grounds or the merits of this appeal.
"As lawyers, this decision is very significant as it is not only important for the PSR case but all EIA approvals as well by the DoE.
The Appeal Board decision is most important for understanding how the DoE DG must make decisions to ensure projects for which EIAs are done are in accordance with the structural plans or local plans which are legally effective," she added.