PUTRAJAYA: Ten anti-Lynas residents, who challenged a decision by the Atomic Energy Licensing Board (AELB) to grant a temporary operating licence (TOL) to the rare earth company, have failed in their appeal to get leave for a judicial review on the matter.

The Court of Appeal here Monday held that the three-man panel was not persuaded that trial judge Justice Rohana Yusuf had erred in her ruling.

Justice Ramly Ali, who chaired the panel, ruled that the High Court was entitled to insist that the residents should exhaust the alternative remedy to appeal to the Science, Technology and Innovation Minister over the issuance of a TOL to the Lynas plant in Gebeng, Pahang.

In an unanimous decision, Justice Ramly said that after reading Section 32 of the Atomic Energy Licensing Act 1984, the panel held that the High Court was entitled to insist that the residents exhaust the alternative remedy.

"So far, as we can discern from the statements, there are matters of fact which need to be confirmed by the parties, which can only be done by appropriate appeal to the minister.

"This will ensure that the issues are crystalised and can be dealt with definitively in a judicial review and not as disputed facts and allegations. We unanimously dismiss the appeal," said Justice Ramly.

The panel include Court of Appeal judges Justices Abdul Wahab Patail and Justice Anantham Kasinather.

Justice Ramly said that the Bench agreed that there would not be any order as to costs.

High Court (Appellate and Special Powers) judge Justice Rohana Yusuf had on April 12 dismissed the application by the residents to get leave to challenge the Lynas project.

The panel made the ruling after hearing submissions by Lynas lead counsel Tan Sri Cecil Abraham, senior federal counsel Noor Hisham Ismail, who acted for the Attorney-General's Chambers and the residents' lead counsel Tommy Thomas in a packed courtroom.

K. Shanmuga, co-counsel for the residents, said his clients would probably apply for leave to the Federal Court because "it was very clear to us that a detailed Environmental Impact Assessment (EIA) must be obtained first before issuing the TOL.

"Since there is a breach of the law, my clients should not have to appeal to the minister," added Shanmuga.

In her April 12 judgment, Justice Rohana agreed with the A-General's Chambers and Lynas Malaysia Sdn Bhd on the objections raised against the application in view of the peculiar facts and circumstances of the case.

Justice Rohana held the 10 residents could have channelled their grouses through the appeal process, to be handled by Science, Technology and Innovation Minister Datuk Seri Dr Maximus Ongkili, on April 17.

She said the judicial review by the residents was premature and may lead to confusion and embarrassment in the event the findings of the minister differed from that of the court.

The residents named AELB, the director-general of the Department of Environment and Lynas Malaysia as respondents in their application filed on Feb 17, challenging the decision, among others, on the grounds it breached the Environmental Quality Act 1974.

The applicants sought for leave to quash AELB's decision on Jan 30 to grant the temporary licence.

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