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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 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? 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. 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.