Ketua Pengarah Alam Sekitar & Anor V Kajin Tubek & Ors and other appeals

[1997] 3 MLJ 23
Court of Appeal (Kuala Lumpur)
14 June 1997

Facts:
The appeals arose from the judgement of the High Court. Respondents were
natives and occupying the land that Ekran Bhd developing the Bakun
Hydroelectric Project. Though the natives will be affected by the project, they
would be resettled by the state government in accordance with the Land Code
(Sarawak Cap 81). The respondents had applied for declaration that the
Environmental Impact Assesment (Amendement) Order 1995 was invalid.
Instead, the Environmental Quality Act was the legislation that Ekran Bhd had to
comply with. The respondents claimed that were not given copy of the
environment impact assessment report and an opportunity to make
representations in respect of impact of the project upon the environment.
Appellants appealed, arguing EQA did not apply to the project as it concerning
land in state of Sarawak.
The court allowed the appeals. The environment in question lay within the
legislative province of Sarawak, thus EQA does not apply.
The respondents (plaintiffs) claiming that the Bakun Hydroelectric Project by
Ekran Bhd concerning the environment matters thus Ekran Bhd should followed
the Environmental Quality Act 1974 (EQA). This is based on Section 1 (1) of EQA
that states the legislation applies to the whole Malaysia. It happens so because
the project falls within the activity described in para 13 (b) of the Environmental
impact assessment order 1987 (the 1987 order) thus it must meet requirements
as laid in section 34A of EQA that said a report of environmental assessment
impact needs to be produced and showed before continuing the said project.
The appellants (defendants) did not do so and the project stalled as the High
Court found favours in part of plaintiffs and declared the Environmental Impact
Assessment (Amendment) Order 1995 (the Amendment Order) that followed by
Ekran Bhd was invalid. The law that applies is EQA and Ekran should have
provided the copy of reports to the plaintiffs. As Ekran had not done so, the
project cannot continue.
The defendants appeal to the Court of Appeal. The judges reversed the decision
of the High Court. It held that the EQA does not apply to the project.

Legal Issues:

Whether the Environmental Quality Act (EQA) 1974 applies in the state of
Sarawak?
Whether the term environment falls exclusively under State List?
Whether the parliament can legislate on matters concerning under list of state?
Grounds of Judgment:
It was held by Gopal Sri Ram and Mokhtar Sidin JJCA that by reason of item 2(a)
of List II and item 13 of List IIIA of Schedule 9 in Federal Constitution (FC), State
of Sarawak had exclusive authority to regulate, by legislation, the use of it in
such manner as it deemed fit. The EQA thus did not apply to the environment
that was the subject matter in this case and the respondents had no vested or
other interest under the EQA.
The 1987 order contains prescribed activities that that fall under EQA. para 13
(b) mentions dams and hydroelectric power schemes. Gopal Sri Ram JCA said
that activity described in para 13(b) of the 1987 Order cannot exist in abstract
Admittedly, the land and river on which the project carried out lie wholly within
the state of Sarawak and are its domain. So, when the respondents speak about
the environment in this case they are in fact referring to environment that
wholly belong to the State of Sarawak subject, of course, to those customary or
other rights recognized by its laws.
Though EQA applies to whole Malaysia in matters concerning the environment,
the state legislation also needs to look upon. In the relation of Federal and State
legislature authority, Gopal Sri Ram JCA mentioned that the presumption of
constitutionality operating in favour of legislation passed by Parliament is a
rebuttable one. The Parliament does not intend to make laws that conflict with
the provisions or the basic fabric of the Federal Constitution. The Parliament is
presumed not to divulge in matters that are within the constitutional authority of
a State within the Federation. The court uses the doctrine of pith and substance
in determining whether the Parliament had legislated in matters under the State
power and vice versa.
In this case, the matters of the supply and distribution of power are in the
concurrent list in where both Parliament and State Legislative Assembly have the
power upon. The environment impacted with the construction of the dam is the
land and water of Sarawak. These two subjects are within the power of the State
of Sarawak. Thus, the EQA do not empowers the Ordinance. The substance of the
EQA must be understood. The Parliament did not intend to regulate extensively
the environment matters when passing the EQA.
In a separate judgment, Judge Mokhtar Sidin in this case, pointed out that there
was no requirement to supply the environmental impact assessment report for
respondents under Ordinance applicable to this case.
Legal Principle:

For matters concerning the applicability of statutes passed by Parliament in

States, there is doctrine of pith and substance that helps to determine the
substance and intention of the legislation made to show what the legislation
supposedly to be up to.