Historical Background

- Began with Water Act 1920

- Laws that effect on the environmental can be traced back to several earlier laws in
the form of ordinance - days of Straits Settlements
- Covers the matter of forestry, petroleum and piscary
- Do not explicitly proffer protection to the environment
- There were laws deals directly dealt with fauna
- Straits settlements ordinance no 3 was drafted to protect few species of wild birds
- Another law affords protection to elephants,seladang was enacted in the state of
Pahang
- said that laws were enacted to address issues that requires attention
- Law Created during Straits Settlements pertaining to matters which were
environmentally related and not directly address environmental problems
- Enacted to regulate management of resources - remained much the same to date
- FC itself had divided resources into 3 categories - Federal List-Fishing, navigation
and fisheries, federal works and power, control of agriculture pests, State List-about
land things-landowner and etc and Concurrent List - protection of wild animals/ town
and country planning
- As such there was no single piece of legislation which encompasses the multitude
facets of environmental
- Due to the fact that environmental was only seen as a matter that needed
attention over the environmental was only seen as a matter that needed attention
over last 20 years
Sources of Msia Environmental Law
- Statues primary source - subsidiary legislations - made under EQA
- Environmental guidelines provided by the department of environmental
- Major is EQA - described as comprehensive legislation relating to environmental
legislation
- Provide the control through licensing
- Means parties that wish to cause pollution can do so as they are provided to issue
licenses and pollute accordance with the rules that had been amended

- Failure - parties can be fine and imprisonment - EQA has 7 parts - S3 / 10

Subsidiary Legislation
- S 51 - power to make regulations in numerous matters relating to environmental
Environmental Guidelines
- Pertaining specific matters
- Eg, implementation of EIA, prevent and control of soil erosion
- Contain manner in which a particular activity ought to be conducted - operation
that would be require written submission from respective authorities and outlines to prevent environment degradation
- Not mandatory in nature
The National Environmental Policy
- Contained from the 3 and 5th Malaysian Plans
- Contains principles :- maintain clean and healthy environment
- maintain quality of the environment relative to the needs of the growing
populations
- Balance the goals of social-economic development and the need
benefits of development to wide spectrum of the populations

to bring the

- To promote greater cooperation and increased co-ordination among relevant

federal and state authorities as well as Asean governments
Principles Governing Environmental Law
- Basic principles
- Sustainable development
- Polluters pay principle
- Precautionary principle
Sustainable Development
- WCED - defined it as development that meets the need of the present without
compromising the ability of the future generation to meet their own needs
- Also means that general principle that human development
- Use of natural resources must take place in sustainable development

- This principle adopted by UNCED - became important - addressing environmental

issues
- 2 basic concept held by Brundtland Commission
(a) concept of needs - essential need of worlds poor
(b) idea of limitation imposed by state
- Report pointed out sustainable
understanding of the problem

development

requires

better

scientific

- Nation should share knowledge -achieve goals of sustainability

- Full support from all category of all ages
Polluter Pays Principle
- Actually economic principle
- Polluter is given reasonability to undertake the cost of repairing any damage
caused by the pollution
- Endorsed and adopted by OECD
- UNCED stated thate polluter should bear pollution cost due to regard to the public
interest
- Applied in EQA -S.47(1)
- Reflects an important strategy for controlling environmental harmful activities by
emphasizing responsibilities for their true economic costs and complementing the
more obvious regulatory measures adopted.
Precautionary principle
- Anticipate, prevent and attack the causes of environment degradation
- Threads of serious and irreversible damage
- Lack of full scientific certainty should not be use as a reason
- In other words, promotes precaution - to be excised when to develop any project
- Also meant prior worry of care
Best Medical Means/ good governance
- Appears to integrate both a scientific and discretionary approach
- The use leading of feasible method to attain a particular goal

- Subjective in nature - depend on social and economic factors

- Section 21 EQA - under clause acceptable conditions
- In cases where no known practicable means of control in order to comply with
acceptable conditions
- Estimated cost incurred to comply - regard size of the operation
- An occasion or instance whereby the imposition of the acceptable condition as
prescribed would create a condition
Atmospheric Pollution
- Contained gases - contained gravity of earth
- x downplay the importance of the atmosphere
- Importance roles in various cycles of nature - water carbon - nitrogen
- Defined as contamination of the atmosphere - produces harmful by products of
human activity
Types of Pollution
- Several pollutions - eg: open burning and etc
- Vehicle Emissions
(a) Cause atmospheric pollution - produced by the vehicles - sulphur dioxide and
nitrogen oxide
- Smoke and Other Atmospheric Pollutants
(a) Burning of solid waste , wastes ( domestic and non-domestic)
(b) Open burning by owner / occupiers of land , open air -S.29A
(c) Transboundary pollution like the haze - caused by open burning for agriculture 1997(Kalimantan)
(d) Haze consist smoke, dust and etc- high concentration of sulphur - Sarawak
declared emergency
* PP V INTRAKOTA CONSOLIDATED BHD
- R charged under s.22 when one of the buses was found to have emitted smoke above 50 HSU limit

- R x deny the smoke but argued it was exercised due to diligence to prevent
commission of the offence
- Should be exempted from liability by virtue S.43(2)
- Held : PP case been dismissed and R was discharged

-Noise
(a)Worst type of pollution
(b) Traffic pollution
(c) Effect quality of life - lead to stressful life, annoyance and etc
(d) World Health Organisation issued urban communities - recommended noise
level 55
* Syarikat Perniagaan Selangor v Fahro Razi
- R sued A from preventing using the land - annoyance of noise
- Applied an injunction to restrain A from operating
- Injunction granted -A appealed
- Held : It was a actionable nuisance - noise that been made - appeal dismissed.
- Related Legislation
(a) EQA
(b) S.21/22 Restriction of pollutions - not all type of pollutions - control on harmful
elements to air
(c) S.4 - Minister powers
(d) S.30-S.33
(e) Penalty divided into two
- any person emits/discharged waste in contravention - liable to 10 thousand imprisonment not exceeding 2 years/both
- Omission neglect to comply with regulation - fine -500/ exceeding 1 year/both

Inland Waters
(a) caused by sewerage from household
(b) suspended solid from soil erosion and heavy metals from factories
(c)Deteriorate the quality of life
Types of Pollution
- Domestic - based Effluents
(a) contained various chemicals
- Industrial - based Effluents
(a)Originated from numerous factories that need water supply for their productions
- Related legislation
(a) S.25 EQA
* PP v Ta Hsin
- Application of this section to Sarawak was discussed
- R found to have discharged effluents in excess of the prescribed amount - charged
under S.25
- Held: - authority of Kajing Tubek cant be applied to this case
Costal Waters
- Area along the coast of Malaysia
Types of Pollution
Land Based Pollution

(a)Sources of pollution to the coastal waters originates from the land

Dumpling at Sea
(a) substance that end u in the sea are oil sludge - toxic waste
Related Legislation
(a) S.27
(b) S.29
Land
- S.2 - definition
Types of Pollutions
Solid Waste
(a) Generated by household and industrial efforts
(b) Packaging of household items
Controversial and Hazardous Use
(a) Wastes from the hospitals that may contain toxic and chemicals
Agriculture
(a)Uncontrolled and excessive usage of chemicals
Related Legislation
(a) S.24
(b) S.81
(c) S.82
EIA (Environmental Impact Assessment)
(a) S.34
* Tenggara Gugusan Holidays Sdn Bhd. vPP
- A was convicted and fined for carrying construction of coastal resorts without
submitting EIA report as stated under S.34
-Held : - It was under prescribed activities, S.34(2)
* Kajing Tubek

- P filled an action - owned native land - which they were living on

- A project of hydro electric dam in Bakun - approved by Msia government - would
flood their homes and an are size of Singapore
- Contract was awarded Ekran Bhd
- Held : P was given right to make representation - provided under law
Litigation
- Disturbed by certain activates by others
- Civil and criminal litigation
-Civil - torts plays a significant role
- Criminal - supporting procedure in effort to tackle environmental
* PP v MBF
- Issue: Whether the DG was charged with 2 different offences
- Held: Any laws that is inconsistent with FC would be would - Art 145
Torts
- to seek compensation
- liability didnt not derived from the contract or covenant
Nuisance
(a) Private Nuisance
- Substantial and unreasonable interference
*Miller v Jackson
- The very essence of private nuisance is the unreasonable use by a man of his land,
to the detriment of his neighbour
* Asian Rare Earth
- P resident of Bukit Merah - sued D for injunction to restraint D company form
operating the factory
- The factory was producing radioactive gases - harmful
- Evidences shows that the gas damages DNA cells of those staying that area

- D contribute substantial interference with comfort of P in enjoyment of the land

- Held : - D liable due to the radioactive

* Hollywood Silver Fox Farm Ltd

- P bred silver foxes on the land evidence that the discharged of guns during breed,
miscarry or kill young
- P sought of injunction against D who deliberately fired guns on his own land
- Held : Court granted injunction use of land of breeding silver foxes is noticeable
sensitive - presence of malice is enough.
Public Nuisance
* Rylands v Flecter
Negligence
* Asian Rare Earth
Criminal Law
(a) S.277 -deals with fouling the water of a public spring
(b) S.278 - Making atmosphere noxious to health an offence
Public Interest Litigation
- Litigation motivated for public interest
* Malik Brothers V Narendra Dadhich
- PIL = entertained by the court for the purpose of redressing public injury enforcing public duty - protecting rights
- Vindication the rule of law
-Order 53 of ROC - Judicial Review - claim for declaration or injunction
- Bakun case - Locus standi
* UEM v Lim Kit Siang

- Held : member of P and leader of opposition had no locus standi to challenge the
validity tendered awarded by the government to UEM
- Neither he stands as a road or highway user or a taxpayer to bring an action as
citizens of country

International Front
- Ensure the ultimate goal of preserving and conserving nature is achieved
- Msia participation can view at two levels
(a) wide spectrum as a member of global community
(b) at regional level - ASEAN
International Cooperation
- x have law making body that most countries do
- Formulation and treaties been employed by most countries
- International suits -ICJ
* Torrey Canyon
- Massive coastal oil pollution accelerated some conventions on maritime pollutions
under the auspices
Asean Region
Non Governmental Organisations
- non profit making
- flexible and democratic
World Wide Fund Malaysia (WWF)
MNS - Malaysia nature society