Defendant Lawyers: Ahmad Hanir for (1) and (2). Tan Sri Cecil Abraham and Datuk Sunil Abraham for (3).
Arguments:
Cabinet's collective decision (28 ministers) on 15 August 2019 to extend Lynas's license by 6 months was void since under the AELB Act Section 32, ONLY the Environment Minister can make the decision on appeals.
Lynas's EIA breached licensing conditions as PDF has underground water pollution.
Plaintiffs (SMSL) will argue that AELB Section (5) says "The Minister may, after hearing the appeal, make an order confirming or setting aside the decision of the appropriate authorityor make such other order as he thinks fit," which indicates that ONLY Yeo has the decision making power, and the 28 people cabinet decision is void.Lynas will argue:
Minister Yeo DID in fact make the decision with the AELB. She just got ADVICE from the cabinet ministers. (https://www.malaysiakini.com/news/488112) showcases AELB issued a statement. Lynas needs to prove that Yeo signed the decision statement with the AELB, and she gave the get go. Does anyone have the full PDF of the AELB statement???
Lynas will argue that Section (4) "At the hearing of the appeal the appellant may be present either in person or by counsel and the Minister may call for such evidence as he thinks fit" allows Yeo to call expert advice / evidence from other parties (ie her cabinet).
Lynas may argue that Section (67) "The Board may from time to time, subject to any specialor general directions, delegate to any person or class of persons (whether by name or office) such of its powers and duties underthis Act as it may think fit.".This means Yeo can delegate powers. Presumably, she delegated her advice channels to her cabinet.
SMSL may argue that the Board made the decision and NOT Yeo. Section 11 says "The Minister may from time to time give the Board directions not inconsistent with this Act as to the policy to be followed in the performance of the functions and the exercise of the powers of the Board and the Board shall give effect to such directions." Lynas will then need to argue the first dotpoint - ie Yeo made the final decision.
Lynas could be cheeky and get into specifics - ie what is the definition of "Minister"? Weirdly, the AELB Act doesn't have a definition. Then, it's up to the Government to decide. It may as well be that rather, the PM (Mahathir) was the "Minister", and he "delegated" his roles to Yeo. Improbable argument though.
Plaintiffs (SMSL) will rather argue the illegality of Lynas's PDF location in Bukit Kuantan Forest Reserve, which under the Kuantan Local Plan 2035 is considered a Class 1 ESA (https://aidwatch.org.au/wp-content/uploads/2021/05/210319-SAM-CAP-detailed-comments_EIA-Lynas-PDF-final.pdf). They will argue that no development can be performed EXCEPT low impact recreational, research or educational activities. The Government might argue that the forest has in fact changed its zoning (show evidence). However, if the timing was wrong, the location is still not allowed.
"The Court of Appeal has made clear that any deviation from a structure plan (and in our case, a local plan) must be for good reason and must be explained and the reasons provided for doing so." The defendants can argue why they decided to change the forest's zoning for Lynas.
Plaintiffs will probably argue that the EIA is inadequate. 29% of the MCISWDS (Multi-Category Industrial Scheduled Waste Disposal Site) is for Lynas. The other 71% is for other companies. They might argue that Lynas did NOT do a thorough analysis of the resultant impacts of the other 71% and how it will affect it's own 29% space. In fact I highly suspect this was the reason for EIA's rejection in terms of "requiring more information." The extra information is because of comments on the EIA (https://aidwatch.org.au/wp-content/uploads/2021/05/210319-SAM-CAP-detailed-comments_EIA-Lynas-PDF-final.pdf) which says Lynas needs to do a larger holistic analysis of the larger MCISWDS site. Likewise, comments say:
The parameters selected in the water modelling are not the parameters of concern.
Second, the water quality modelling is unable to simulate the complex compound state of radionuclides.
Third,the EIA should conduct baseline river water sampling for thorium, uranium, radium, gross alpha, and gross beta at all the water sampling stations.
Uncertainties overthe LTP discharge
Second, the proposed LTP discharge is worrying,when there are no specific standards for the special effluent discharge that containradioactive substances such as the WLP in Malaysia.
Fourth, the Radiological Impact Assessment (RIA)did not seemto consider the 50% LTP removal efficiency for radionuclides
The use of outdated data and laboratory-produced WLP residue in the thorium solubility analysis
Failure to consider climate impacts due forest clearing
Missing decommissioning or abandonment plan
In conclusion after my lengthy analysis, in which I considered legal / multiple arguments, 3 takeaways:
Lynas will win 99.99% for the court case on only Yeo making the decision. If anyone has the PDF showing her signature, that'll be 100% sure Lynas wins. Notice Yeo is represented with the SAME LAWYER as the other 27 cabinet ministers!!!!!!!
Lynas will obtain the new EIA with a 80% chance, since the requirement of more information is because of missing analyses in the EIA.
The new Environment says "He said the state government had also approved Lynas’ application to build the PDF in any part of the industrial waste disposal site, using only 12ha or 6% of the total area that will be gazetted. “In its meeting on July 28, the Atomic Energy Licensing Board (AELB) approved the proposed site, subject to approval of the Radiological Impact Assessment and Environmental Impact Assessment studies as well as other relevant requirements of the local authorities." This means Lynas can relocate within anywhere in the site. Lynas can just re-apply.
(20min delay)