VICTORY FOR FISHERMEN in Penang South Reclamation Project

WED (8 September 2021): The fishing community in the vicinity of the proposed Penang South Reclamation (PSR) Project has won its appeal at the Department of Environment (DOE) that resulted in the revocation of the Penang South Islands’ (PSI) environmental impact assessment (EIA) approval.

“This decision is very significant as it is not only important for the PSR case but all EIA approvals as well by the DOE,” says Meena Raman, lead lawyer for the fishermen at a press conference held today.

“The Appeal Board decision is most important for understanding how the Director General of the DOE must make decisions to ensure that the projects for which EIA are done are in accordance with the structure plans or local plans which are legally effective,” said Ms Raman.

Hj Zakaria bin Ismail is a fisherman who lives in Sungai Batu, on the south of the Penang island. He is one of many fisherman who would be affected by the massive 4,500 acres reclamation project called the Penang South Reclamation project (PSR).

On 29.07.2019, Hj Zakaria filed an appeal with the Appeal Board under s.35(1) of the Environmental Quality Act 1974, appealing against the decision of the Director General of the Department of Environment (DG of DoE) dated 25.06.2019, which is an approval with conditions, of the said Environmental Impact Assessment (EIA) for the PSR project.

Today, the Appeal Board set up under Regulation 3 (1) of the Environmental Quality (Appeal Board) Regulations 2003 held that the decision of the Director General in approving the EIA for the PSR on 25.06.2019 is set aside because it is invalid and therefore null and void.

The Board held that it was mandatory for the DG to comply with s.34A(4)(a) EQA 1974 in approving the EIA report. In that the Board decided that the Department of Environment could not rely on a draft Penang Structure Plan 2030 which was approved by the State Planning Committee on 14.03.2019 because at the time when the EIA was approved on 25.06.2019, the valid Structure Plan for Penang was the 2020 Structure Plan. The Penang Structure Plan 2030 was only a draft.

The Penang Structure Plan 2030 was only formally approved, through the giving of the assent by the Governor of Penang on 28.08.2019. This was a requirement under section 10(6) of the Town and Country Planning Act 1976, for the draft Penang Structure Plan 2030 to become legally effective.

The Board also held that they could not regularise this defect because s.35 (2) of the EQA 1974 and the Rules of Court 2012 did not allow them to do the same.

Hence, the Board allowed Haji Zakaria’s appeal and set aside the approval of the decision of the DG of DoE for the PSR EIA.

The Appeal Board was chaired by Judge Puan Rozina binti Ayob, with Prof. Dato’ Dr. Mazlin Bin Mokhtar and Prof. Madya Dr. Ramdzani Bin Abdullah. Hj Zakaria was represented by his legal team led by Meena Raman while the Department of Environment was represented by federal counsel Puan Nurliyana binti R Azmi.

Summary of Decision of PSR