Penang State must make public findings of investigations into Jalan Bukit Kukus landslide tragedy

Sahabat Alam Malaysia (SAM) and the Consumers Association of Penang (CAP) call on the Penang state government to make public its findings into the Jalan Bukit Kukus landslide tragedy and to disclose the conditions under which works are being allowed to proceed.

This call is made in the wake of works being allowed to proceed on the road, following the lifting of stop-work orders issued by the Department of Occupational Safety and Health as well as the Majlis Bandaraya Pulau Pinang (MBPP), as reported in the media today.

Given that the State had carried out internal investigations on the tragedy which occurred on Oct.17 which saw the loss of 9 lives, it is vital for the findings to be made public, so that there is transparency in the process.

We would like to know if the relevant authorities are being held accountable for their inactions in relation to the tragedy.

It is also critical to know what measures are being taken and conditions imposed to ensure that there will be no repeat of any untoward incidents once work on the road project commences.

In response to claims by the authorities that no Environmental Impact Assessment (EIA) report was needed for the project, CAP has written to the Chief Minister, the Mayor of MBPP and the Department of Environment (DOE) asking how the project was exempted from such a requirement.

According to state officials, an EIA was not required, as this was the view of the DOE for which an exemption letter was given.

The authorities must clarify why an exemption was given for this project, when the project involves hill lands above 76 m and slopes exceeding 25 degrees.

Our understanding of the law on the matter is as follows:

The approval for the road construction was given sometime in 2013-2014.

1.      The relevant law that applied then was the Environmental Impact Assessment (Prescribed Activities Order) 1987. Effective from 20th June 2011, the DOE had a list of ‘Prescribed Activities’ which required Detailed Environmental Impact Assessment (DEIA), which means that public feedback must be sought on the DEIA for the project prior to any approvals given.

Among the listed projects are: ‘Project involving land clearing where 50% of the area or more having slopes exceeding 25 degrees (except quarry).’

In our view, this is meant to cover any type of project on risky hill slopes.

In the case of the Bukit Kukus Road, much of the project involves the clearing of areas which exceed 25 degrees, and regardless of the type of road (whether ‘collector road’ or some other road), a DEIA should have been required.

It is untrue to say that the law did not require an EIA, when the DOE list of activities required an EIA for a project of this nature. Why such an exemption was given by the DOE must be made public by the DOE.

2.      A second point that must be addressed relates to non-compliance with the current Penang Structure Plan (PSP). The PSP contains a general prohibition against any form of development on lands with a slope of more than 25 degrees or lands situated at more than 75 m (250 feet) above sea level (i.e. hill lands).

The PSP only allows for limited development on hill lands if a project is categorised as a ‘special project’. The PSP does not define what is a ‘special project’. However, there are ‘Guidelines on Special Projects’ which were approved by the State Planning Committee in 2009. Under these guidelines, any infrastructure project which is of importance to the government and for public use which cannot be avoided from being on hill lands can fall in the category of ‘special project’.

If the Bukit Kukus Road project was such a ‘special project’ as per the Guidelines, then the PSP states clearly that the development must be subject to strict controls by complying with guidelines for hillslope developments and it must also have an approved EIA in addition to approval from the State Planning Committee.

Given the above, not having an EIA for the Bukit Kukus Road is a clear violation and non-compliance of the PSP.

The PSP has legal effect as it is done under the Town and Country Planning Act 1976 and is a gazetted document.

The State authorities including the MBPP as well as the DOE must abide by the PSP and should have ensured that a DEIA was done for the project, which should have been subject to public display and consultations prior to any approval for this project.

Clearly, by not having an EIA done, there has been a non-compliance of the PSP and this is a very serious transgression of the law and guidelines by the authorities themselves.

The Bukit Kukus landslide tragedy cannot be regarded merely as a worksite tragedy. It involves a project on sensitive hill lands, given that the project is clearly above 76 m and involves gradients of 25 degrees and above.

The State Authority, the MBPP and the DOE must explain how they allowed non-compliance of the PSP as well as the EIA Guidelines. If the authorities themselves did not follow the laws, then they must be held responsible and accountable for their inactions too.

We therefore demand an explanation from the Chief Minister, the Mayor of MBPP and the Director-General of the DOE in this regard.

This is too serious a matter and cannot simply be regarded as a worksite tragedy with blame being passed on to the contractors involved in the project. The authorities themselves must accept some blame and responsibility for their inactions.

Therefore, we would like the findings of the investigations done by the State to be made public, to understand if the relevant authorities are going to be held accountable for their inactions.

 

Press Release, 31 Jan 2019

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