The Appeals Court rules they should have appealed first to the minister over the granting of the TOL.
PUTRAJAYA: Ten Gebeng and Kuantan residents lost their appeal in the Appeals Court here today for leave to challenge the decision of the Atomic Energy Licensing Board (AELB) to grant a temporary operating licence (TOL) to rare earth company Lynas Malaysia Bhd in Gebeng, Pahang.
Appeals Court Judge Ramly Ali, chairing a three-member panel, ruled that the residents should appeal first to the Science, Technology and Innovation Minister over the granting of a TOL to the Lynas plant before filing for leave in court to initiate a judicial review to challenge the granting of the TOL.
He said there was no hard-and-fast rule as to when the residents must exhaust the internal remedy (of appealing to the minister).
He said the Appeals Court was not persuaded that Kuala Lumpur High Court judge Rohana Yusof had erred in her decision in rejecting the application for leave to file a judicial review application to challenge the granting of the TOL brought by the residents.
“After reading Section 32 of the Atomic Energy Licensing Act 1984, the Appeals Court is entitled to insist that the appellants [the residents] exhaust their internal remedy [by appealing to the Science, Technology and Innovation Minister],” Ramly said in dismissing the residents’ appeal on the sole ground that they did not exhaust the internal remedy.
He said there were matters of fact which must be confirmed by the parties which could only be done by the residents lodging an appeal to the minister.
“This would ensure that the issues are crystallised and can be dealt with definitively in the judicial review and not as disputed facts and allegation,” said Ramly, who presided in the panel with Justices Abdul Wahab Patail and Anantham Kasinater.
The panel ordered both parties to bear their own legal costs.
The residents had appealed against the decision of the High Court which had on April 12 this year dismissed their application for leave to initiate a judicial review application to challenge the decision of the AELB to grant TOL to Lynas on Jan 30 this year.
Rohana had held that the residents’ leave for judicial review application was premature as they had not exhausted all their avenues, including appealing to the minister before they filed the judicial review application.
In their leave application, the residents named as respondents the AELB which oversees the production, application and use of atomic energy and radioactive material, the Director-General of Environmental Quality, and Lynas Malaysia Sdn Bhd.
They sought a certiorari order to quash the AELB’s decision to issue TOL to Lynas.
The residents also wanted an injunction order to prohibit AELB from issuing any temporary or permanent licence to Lynas except or until the company presented a detailed evaluation report on the plant’s effects towards the environment to the Director-General of Environmental Quality and until the said report was approved.
The 10 residents were represented by lawyers Tommy Thomas and K Shanmuga.
The AELB and the Director-General of Environmental Quality were represented by senior federal counsel Noor Hisham Ismail while Lynas was represented by lawyers Cecil Abraham and Sunil Abraham.
Thomas submitted in the court earlier that Rohana had imposed a higher threshold in not granting leave. Abraham argued that the residents’ application could be academic due to the fact that they did not exhaust their right to appeal to the minister.
Outside the court, Shanmuga told reporters that he would get instructions from his clients on whether to bring the matter to the Federal Court.