Sand mining activities cause damage and deaths – Consumers Association Penang

The Consumers association of Penang (CAP) welcomes and lauds the 2008 decision of the Sungai Petani Sessions Court Judge Puan Azizah Mahamud who awarded 2 families damages amounting to RM36,000 for burial and bereavement costs as well as interests and costs for the drowning of 3 children due to the negligence of independent contractor Abdul Halim Hashim and the Department of Land and Mines, Kedah.

Despite the fact that the amount awarded was small (as it followed statutory requirements) for precious lives lost, the decision comes as a timely reminder to all State authorities to monitor and supervise the work of all their contractors in cases where permits have been issued for various activities.

A short background to this case is necessary to enable readers to understand the basis of this decision. On 21.01.1998, about 5.30pm 3 children, Zuraidah bt Zulkppli, Faizul Azizi b Mat Saad and Nur Shadatina bt Adnan together with their siblings and friends went to Sungai Sidim, near their home in Kampung Bikan, Baling, Kedah to swim and play in the river. This was not an unusual activity as both children and adults from this village regularly utilise the river and its banks for their daily needs and recreational purposes. Unfortunately, all 3 children drowned in the river on the said date as a result of sand dredging activities operated by Abdul Hashim and/or his agents.

The parents of the deceased children filed a suit in 2001 and claimed that both Abdul Halim and the Department of Land and Mines had been negligent as they had caused the deepening of the river and/or weakened the river banks, failed to take any steps or sufficient steps to prevent the river, its base and/or its banks from becoming dangerous to children who might play, bathe or use the river and the banks for other activities and failed to put up any fence and/or adequate warning signs preventing the children who died or anyone from entering the river, its banks or areas where sand dredging activities were taking place.

The parents also claimed in their suit that the Department of Land and Mines had been negligent in the carrying out of their duties when they failed to make any or any reasonable provisions to prevent Abdul Halim from undertaking activities which would compromise the safety of the public and adhere to the conditions in the permit issued by the Department as well as ensure that priority is given to the safety of the public.

Puan Azizah found Abdul Hashim to be negligent as he did not comply with the permit issued by the Department of Drainage and Irrigation which stated among others that the river should be dregded not more than 0.5 metres in depth. Abdul Halim and/or his contractors had in fact altered the course of the river by dredging the river more than the depth required by the conditions in the permit (i.e more than 0.5 metres) and this also resulted in weakened banks. The court accepted the evidence of independent hydrologist, Prof Dr Chan Ngai Weng, who attested to the consequences of the dredging works on the area of the river in question, after conducting a study of the river and its banks.

Further, the Department of Land and Mines was found to have been negligent as it had failed to monitor and supervise the acitivities of the contractor and whether he had complied with the conditions in the permit. Both parties in this case could not produce reports to show the conditions of the river and its banks prior and post the issuance of the permit. In fact the Department failed to take any action against Abdul Halim and/or his contractors despite the tragedy.

CAP believes that if the Department of Land and Mines had installed proper surveillance mechanisms and monitored the work of the contractor in this case, these unfortunate deaths may have been averted.

CAP also calls on States to beef up their enforcement and take stern action against negligent contractors.

Further, permits for activities and projects, especially where it involves sand dredging activities in areas utilised by the general public, should be issued with strict conditions that come with proper monitoring mechanisms in place.

These permits should only be issued to reputable independent contractors with good track records. Incidents involving the negligence of the Department of Land and Mines (in this case) as well as other State agencies should never occur in future.