Court throws out legal challenge against Lynas' operating licence extension

 

Save Malaysia Stop Lynas (SMSL) and two Kuantan residents failed in their legal bid to squash the six-month operating licence extension granted to the Lynas rare earth processing plant by the then Pakatan Harapan federal administration.

The High Court in Kuala Lumpur this afternoon dismissed the judicial review application by SMSL chairperson Tan Bun Teet as well as Ismail Abu Bakar and G Ponusamy.

Contacted by the media, the government’s legal representative, senior federal counsel Ahmad Hanir Hambaly @ Arwi, confirmed the decision by judge Ahmad Kamal Md Shahid.

“The judicial review is dismissed,” Hanir said, adding that the court’s decision was conveyed via email exchange with the parties this afternoon.

He added that the court did not provide grounds for the decision.

Under the law of civil proceedings, in the event that a court does not provide grounds for a decision when initially delivered, the detailed grounds would be provided later when the full written judgment is issued.

When contacted later today, lawyer A Dinesh said the court ordered his clients - Tan, Ismail and Ponusamy - to pay a total of RM40,000 as costs to the 31 respondents in the matter.

On Nov 8, 2019, the trio filed the legal action, naming then prime minister Dr Mahathir Mohamad and the members of the then Harapan cabinet as among the 31 respondents in the matter.

In February last year, it was reported that the then Harapan government granted a three-year extension of Lynas’ operating licence, to run until March 2023.

The Atomic Energy Licensing Board (AELB) imposed four conditions for the three-year extension, namely that:

1. Lynas to begin the process of developing the permanent disposal facility (PDF) within the first year from the date of approval of the licence;

2. Lynas must submit a work development plan for the construction of the PDF and report on its development status as determined by the Malaysian AELB;

3. Lynas must ensure that the cracking and leaching plant outside Malaysia is in operation before July 2023. After that period, Lynas will no longer be allowed to import raw materials containing naturally occurring radioactive material (Norm) into Malaysia; and

4. Holding of the financial deposit will be maintained for compliance with the relevant licence conditions.

After the proceedings conducted via email this afternoon, Dinesh explained that the court ordered his clients to pay the RM40,000 costs, following submissions on how much costs need to be paid.

“The applicants are required to pay costs of RM20,000 (global costs) to the (first to 30th) respondents without allocator fee.

“The applicants are required to pay costs of RM20,000 to the 31st respondent, subject to allocator fee,” Dinesh said.

The first listed 28 respondents were the former Harapan cabinet members, namely

1. Mahathir;
2. Former deputy prime minister Dr Wan Azizah Wan Ismail;
3. Former energy, science, technology, environment and climate change minister Yeo Bee Yin;
4. Former home minister Muhyiddin Yassin (who is now Prime Minister of the PN cabinet);
5. Former finance minister Lim Guan Eng;
6. Former defence minister Mohamad Sabu;
7. Former education minister Maszlee Malik;
8. Former rural development minister Rina Harun (who is now Women, Family and Community Development Minister in the PN administration);
9. Former economic affairs minister Mohamed Azmin Ali (who is now the PN government’s International Trade and Industry Minister);
10. Zuraida Kamaruddin (who in the then Harapan and now PN administration is still Housing and Local Government Minister);
11. Former transport minister Anthony Loke;
12. Former communications and multimedia minister Gobind Singh Deo;
13. Former human resources minister M Kulasegaran;
14. Former agriculture and agro-based industry minister Salahuddin Ayub;
15. Former health minister Dzulkefly Ahmad;
16. Former youth and sports minister Syed Saddiq Abdul Rahman;
17. Former entrepreneurship development minister Mohd Redzuan Md Yusoff;
18. Former water, land and natural resources minister A Xavier Jayakumar;
19. Former domestic trade and consumer affairs minister Saifuddin Nasution Ismail;
20. Former works minister Baru Bian;
21. Former foreign affairs minister Saifuddin Abdullah (now Communications and Multimedia Minister in the PN government);
22. Former primary industries minister Teresa Kok;
23. Former minister in the prime minister’s department (religious affairs) Muhajid Yusof Rawa;
24. Former federal territories minister Khalid Abd Samad;
25. The late former minister in the prime minister’s department (legal affairs) Liew Vui Keong;
26. Former international trade and industries minister Ignatius Darrell Leiking;
27. Former tourism, arts and culture minister Mohamaddin Ketapi;
28. Former minister in the prime minister’s department (national unity) P Waytha Moorthy.

The 29th, 30th, and 31st respondents are the government of Malaysia, AELB, and Lynas Malaysia Sdn Bhd.

Through the judicial review action, Tan and the two Kuantan residents sought a declaration that the then cabinet’s decision on Aug 15, 2019 was null and void as it contradicted an earlier Dec 4, 2018 decision by the Energy, Science, Technology, Environment, and Climate Change Ministry (Mestecc) on the matter.

On Aug 15, 2019 the then cabinet decided to grant Lynas the extension, provided they fulfilled three conditions:

1. Present a plan for a cracking and leaching facility abroad and transfer the processing of radioactive waste from its Gebeng plant in Kuantan
2. Identify a specific location for a permanent disposal facility for existing radioactive waste
3. Stop all research and development on the usage of radioactive waste

The ministry earlier set two conditions for Lynas before allowing any license renewal - remove accumulated radioactive Water Leach Purification (WLP) residue from Malaysia; and submit an action plan on how it will dispose of non-radioactive waste.

The trio also sought a declaration that Mestecc Minister Yeo Bee Yin unlawfully and wrongly delegated her decision-making power, provided under Section 32 of the Atomic Energy Licensing Act 1984, to the cabinet.

They contended that the cabinet acted beyond its legal authority in the Aug 15, 2019 decision. - Mkini