Rare Earths, Radioactivity And The Courts

As the furore over the proposed Lynas rare earth plant in Gebeng, Kuantan continues, a former lawyer involved in the Bukit Merah plant goes behind the scenes of the similar challenge to the Bukit Merah plant 20 years ago.

No to Lynas!| Source: Free Malaysia Today

No to Lynas!| Source: Free Malaysia Today

Plans are heavily underway to start up a rare earths (ARE) plant (in Pahang) that will produce waste that is radioactive.

I was counsel (with others) in seeking an injunction to stop a similar rare earths plant in Bukit Merah in the 1990s. At that time the defendants – Asian Rare Earth (ARE) -  contended that the radioactive waste posed no danger as it had low level radioactivity. The Government supported them in this. As did the local shareholders of this Mitsubishi plant which included Tabong Haji. The Malaysian Atomic Energy Licensing Board also at one stage weighed in to declare it safe.

Now for this proposed ARE plant in Kuantan the same justifications are being resurrected.

Significantly, the spokesperson of the Australian partners for this present rare earths plant in Lynas is quoted by the Malaysian Insider in their April 12, 2011 article “Lynas will start Kuantan plan, radioactive waste onsite” as “repeatedly stressing that Malaysia’s last rare earth project in Bukit Merah SHOULD NEVER HAVE GONE AHEAD“. [The writer's emphasis]


That means it was not safe! Reports state that the Bukit Merah ARE plant has been linked to at least 8 leukemia cases with 7 deaths after being shut down in 1992. Now who is responsible for these deaths – and no doubt several other related consequences of allowing this plant to continue then?

The High Court then (Peh Swee Chin J) – after one of the longest civil trial hearings in our legal history – ruled for the closure of the plant. The ARE lawyers then obtained a stay of the order – first ex parte. Then at the inter partes hearing the residents’ application to set aside the stay order was dismissed. The then Supreme Court ruled that he plant could continue to operate. This was despite our sustained contention that the High Court had decided to close the plant on the ground of safety of the residents – and if the final appeal hearing ruled in the residents’ favour – serious irreparable harm would have been caused in the interim.

At the final hearing – one of the most shameful legal episodes in our history, in my respectful view (the Bakun Dam case is another) - the Supreme Court ruled against the residents. Sitting as part of the coram of the Supreme Court (headed by Tun Hamid Omar) was the then Chief Judge (Malaya), Tan Sri Anuar Zainal Abidin. He ruled long ago in this same case when he granted us an interlocutory injunction against the ARE plant, that until the matter was finally decided, life was more important than profits. Now after a judgment declaring the lack of safety of the plant he joined the other judges to deny the permanent injunction!

There are, of course, lawyers who would and could muster legal arguments in support of the Supreme Court ruling. (By the way, the Supreme Court in this important case, promised to write a full judgment. To date, this judgment has not been written. As the saying goes – bisu di dalam seribu bahasa.)

Now it is being said repeatedly in the full hearing and presence of the Malaysian Atomic Energy Licensing Board and all those others (judges and all) who so assiduously allowed the ARE plant to go on that the plant should never have been allowed to operate in the first place. And deaths have resulted!

I wonder what they have to say?

Sadly, as in the Japanese tragedy, the heaviest price is always paid for by the families located in and around these plants – people who have no share or interest in the enterprises that own and operate the facility.

Various Rare Earth Samples | Source: Reuters

Various Rare Earth Samples | Source: Reuters

The ARE plant was finally closed because of the galvanised self help efforts of the residents (assisted by seeveral non-governmental organizations and others). I know for a fact that the residents in and around Bukit Merah have long since lost all confidence in the court process.

It had failed them badly – with incredulous personal consequences.

See also: the New York Times report in “Mitsubishi Quietly Cleans Up Its Former Refinery” dated March 8, 2011

Gurdial Singh Nijar is a professor of law at Universiti Malaya. He left private practice some years ago. The views expressed here are personal, and is edited from an  email he sent to the Rostrum googlegroup.

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Posted on 13 April 2011. You can follow any responses to this entry through the RSS 2.0.

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