The High Court will hear on March 20 the leave application for a judicial review over the decision by government regulators to grant Lynas a temporary operating license

KUALA LUMPUR: Government legal representatives today raised a preliminary objection against the court action by residents of Kuantan attempting to stop the controversial Lynas radioactive rare earth refinery from firing up its operations.

Senior Federal Counsel Suzana Atan and Noor Hisham Ismail, from the Attorney-General’s Chambers, said the 10 applicants failed to exhaust all internal remedies before going to court.

“Under the Atomic Energy Licensing Act 1984, there is the procedure to appeal to the minister (Minister of Science, Technology and Innovation Maximus Ongkili) and they have not done that. That’s the grounds we are raising as preliminary objection to this judicial review,” Suzana told reporters after meeting with High Court (appellate and special powers division) judge Rohana Yusuf in chambers today.

It was learnt that Lynas Malaysia Sdn Bhd’s lawyers had also sought to make the same preliminary objection.

Judge Rohana fixed March 20 to hear arguments from the Kuantan residents’ lawyers as well as the leave application for the judicial review.

The court room at Jalan Duta this morning was jam-packed with anti-Lynas supporters, many of them coming from as far as Kuantan and waiting since 5am. Even many media personnel were barred from entering as the court room had exceeded its capacity.

Lawyer K Shanmuga, lead counsel for the residents, said that they would be arguing against the preliminary objection by saying that AELB had gone against the law in the first place and the residents had every right to take court action.

“We would argue that because what AELB did was illegal, that’s why we could come to court straight away (without appealing to the minister).

“Because the crux of the complaint is that AELB should have asked Lynas for a Detailed Environmental Impact Assessment (DEIA), and by not asking for the DEIA, they breached Section 34(A) of the Environmental Quality Act 1974,” he said.

On Feb 17, 10 residents who live between 3km and 18km from the RM2.5 billion Lynas Advanced Materials Plant (LAMP) in Gebeng, filed a judicial review asking the court to quash the AELB’s decision to grant the temporary operating licence (TOL) to Lynas on Jan 30.

They are attempting to prevent Lynas from starting its operations in the second quarter of the year, accusing Lynas of ignoring their fears of health and environmental repercussions.

The applicants are: Zakaria Abdullah, Ramli @ Kamaluddin Awang, Ab Sani Ahmad, Mohd Rasid Hamzah, Mansor Bedu, Ali Akbar Othman, Hasim Awang, Nadarajan Raju, Pang Chee Kian, Yuw Yin Lan.

Seven of them, who were in court today, did not want to be photographed due to fear for their safety.

The suit also called for AELB to be prohibited from issuing any temporary or permanent license to Lynas until a DEIA report was submitted to and approved by the Department of Environment (DOE).

‘In breach of national justice’

The applicants also claimed that AELB breached several Federal Constitution provisions particularly Articles 59 (1), 13 and 8(1) pertaining to freedom, equality and the rights to property respectively.

The applicants had stated that the AELB had acted in breach of national justice by approving the TOL as it had not given an opportunity to those who wanted to make representations on the safety of LAMP in a“meaningful or proper” manner.

The court filings included two affidavits by chemical engineer, Dr Lee Chee Hong, and executive, Zakaria Abdullah. Lee, who had been deeply involved in researching and presenting his findings on LAMP, emphasised that allowing Lynas to begin its operations would put Malaysia at risk of another environmental disaster.

More than 100 anti-Lynas supporters, who gathered outside the court, held banners and chanted slogans such as “Stop Lynas and save Malaysia”, “We dont’ want it. We are not lab rats” and “Go back to Australia!”

Kuantan MP Fuziah Salleh, who was also present, said that the anti-Lynas supporters were disappointed that the proceeding was heard in chambers as it was a public interest case.

“In the meantime, we are not withdrawing the suit. We are firm in that AELB had gone against the law. On the five conditions given to Lynas by the regulator, the first says that you need a permanent disposal facility, but the second one says that there must be an undertaking from Lynas to return the waste to the country of origin. This is ‘main wayang’, ‘main silap mata’, as this is contradictory,” she said.

“If the waste is to be returned, then why the need for a waste facility? According to Lynas, they could keep the waste for 14 years… They are just misleading the rakyat. They very well know that Australia said it is Malaysian waste, they refuse to take it,” she added.

Fuziah had recently called for a DEIA report in light of a “flawed” Preliminary Environmental Impact Assessment (PEIA) report.

However a representative from the DOE deemed a DEIA unnecessary as the PEIA was sufficient and had already been studied and approved.