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Triple Trifecta Week - July 28 Court; EIA; Quarterly Report, page-22

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hw looi

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24/07/21

14:20

Post #: 54742933
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Originally posted by SuperSerenity: ↑

In terms of my own PERSONAL analysis (ie DO NOT use my analysis as investment advice + I do NOT take responsibility!)
July 28 Court Case: 99.99% Chance of Lynas winning - see below for explanation.
Late July - August EIA: 80% Chance of obtaining EIA - see Argument Case Approximation 2

July 28 Court Case
https://www.malaymail.com/news/malaysia/2021/05/18/high-court-sets-july-28-for-decision-on-lynas-licence-extension/1975146
Court: Malaysia Kuala Lumpur High Court
Lodgement Date: November 8, 2019

Plaintiffs:
Save Malaysia Stop Lynas (SMSL) chairman Tan Bun Teet
Kuantan resident Ismail Abu Bakar
Kuantan resident G. Ponusamy
Plantiff Lawyers: Datuk Seri Gopal Sri Ram, Dinesh Athinarayanan and Saha Deva for (1), (2) and (3).

Defendants:
Mahathir (old PM) + 27 cabinet ministers. Includes Environment Minister Yeo https://en.wikipedia.org/wiki/Seventh_Mahathir_cabinet
Malaysia Government + AELB
Lynas
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.

Argument 1 Case Approximation
Defendants (Lynas) will PROBABLY first say that the court has no jurisdiction. The AELB Act (https://www.aelb.gov.my/malay/dokumen/perundangan/Akta304E.pdf) Section 32 (5) says "and the order of the Minister shall be final and shall not be subject to any appeal or review in any court". This will fail. A case in 2018 (https://www.malaysiakini.com/news/411678) says the courts CAN perform judicial review.
Plaintiffs (SMSL) will say PROBABLY AELB Section 32 (1) that Lynas did NOT submit within a 30 day period. "thirty days after being notified of such decision give notice of appeal inwriting to the Minister in the prescribed manner." https://www.copyright link/companies/mining/lynas-appeals-malaysian-decision-20190104-h19q7u presumably shows Lynas on 4 January 2019 launched an appeal to the decision made on December 4 2018 (https://www.copyright link/companies/mining/malaysia-sets-licence-renewal-conditions-for-rare-earths-miner-lynas-20181204-h18qhn). This is 30-31 days. It'll be funny if they argue that the term "within" indicates inclusivity of the first date (ie December 4). Lynas will probably argue that they were notified during the end of the day or something along the lines of that. This should be fine.
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.

Argument 2 Case Approximation (EIA)
Plaintiffs (SMSL) will argue the EIA is wrong, as radioactive leachate flows underground. (https://cdn-api.markitdigital.com/apiman-gateway/ASX/asx-research/1.0/file/2924-02134354-6A941191?access_token=83ff96335c2d45a094df02a206a39ff4). I'm not sure what the license stipulates exactly word for word, but according to Lynas's announcement, no mention of undergound leachate conditions were in the license.
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.
Interestingly if I was Lynas, I would argue that the storage of leachate is in fact for RESEARCH PURPOSES . (https://cdn-api.markitdigital.com/apiman-gateway/ASX/asx-research/1.0/file/2924-02134354-6A941191?access_token=83ff96335c2d45a094df02a206a39ff4) "Lynas has also previously been required to spend 0.5% of annual gross sales on research and development. Under the new licence, Lynas is no longer required to spend 0.5% on research and development". This is in line of the usage of Condisoil R&D (https://www.freemalaysiatoday.com/category/nation/2020/08/04/govt-to-review-lynas-proposal-to-continue-condisoil-rd/). However then Lynas needs to prove that it's LOW IMPACT (which the EIA must address). Likewise (https://www.freemalaysiatoday.com/category/nation/2020/08/04/govt-to-review-lynas-proposal-to-continue-condisoil-rd/), "The decision by the Cabinet on Feb 12 and 19 is that Lynas must end all R&D activities relating to the use of WLP residue as condisoil in agriculture. But during the time we are waiting for the PDF to be completed, we can continue with the R&D; If the R&D finds that WLP waste can be used as condisoil – not dangerous, not radioactive or have other effects – then there is nothing wrong with continuing the effort."
"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.
(https://www.freemalaysiatoday.com/category/nation/2020/08/04/govt-to-review-lynas-proposal-to-continue-condisoil-rd/) shows that in fact, "Khairy said the Pahang government had given the green light for a 202.35ha multi-category scheduled industrial waste disposal site at Bukit Ketam in Mukim Kuala Kuantan and was in the process of gazetting it." This means the forest site in fact is under revision of the Kuantan Local Plan 2035!
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.
If Lynas fails with the EIA:
Lynas in (https://cdn-api.markitdigital.com/apiman-gateway/ASX/asx-research/1.0/file/2924-02134354-6A941191?access_token=83ff96335c2d45a094df02a206a39ff4) says that: "Alternatively, Lynas can obtain consent from another country to receive the material"
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.
Likewise recently (https://www.malaysiakini.com/news/583284) Pahang allowed Bauxite Mining to continue and the EIA passed. This could be a precedent!

Actions:
Does anyone have the full PDF of the AELB statement for the 6 month license extension?

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