Gopal Sri Ram JCA:

Introduction

These three appeals were heard on 17 February 1997. At the conclusion of argument they were allowed and certain consequential orders were made to which I will refer later in this judgment. A brief oral summary of the main grounds on which the decision of this court was based were also delivered. My written reasons for the decision arrived at now follow.

All three appeals arise from a single judgment of the High Court and concern the same subject matter. Although the appellants are different in each appeal, the respondents are common. For this reason, when the appeals were called on for hearing, it was decided, with the consent of all Counsel before the court to hear the appellant in each appeal and then to invite a response from Counsel for the common respondents. The appeals were heard, not in the order in which they were filed, but according to what was perceived to be the logical sequence of the arguments raised by the parties in the court below. Accordingly, Dato' Gani Patail, Senior Federal Counsel who appeared for the appellants in Civil Appeal No. 166/96 ('the first appeal') was invited to make his address first, followed by Datuk JC Fong, the Attorney-General for the State of Sarawak, who appeared for the appellants in Civil Appeal No. 165/96 ('the second appeal') and Encik Muhammad Shafee Abdullah who appeared for the appellant in Civil Appeal No. 341/96 ('the third appeal'). Encik Gurdial Singh Nijar of counsel for the respondents in all the three appeals, then responded to the arguments advanced in each appeal.

The appellants in the first appeal are the Director-General of the Department of the Environment and the Government of Malaysia respectively. The appellants in the second appeal are the Natural Resources and Environment Board of Sarawak and the Government of the State of Sarawak respectively. Ekran Berhad ('Ekran'), a public limited company, is the appellant in the third appeal.

The Background

All the appellants in these appeals were defendants to an originating summons taken out by the respondents, as plaintiffs, in the court below. By the summons, as later amended, the respondents claimed the following relief:

1. A declaration that the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) (Amendment) Order, 1995 is invalid;

2. A declaration that before the 1st defendant (Ekran) carries out the prescribed activity, viz. the construction of the Bakun Hydroelectric Project, the 1st defendant has to comply with the Environmental Quality Act 1974 , including s. 34A of the said Act and/or the guidelines prescribed by the 2nd defendant (the Director-General) under s. 34A of the said Act , and the Regulations made thereunder.

3. Costs of this application be borne by the defendants.

4. Any other relief as deemed fit by this Honourable Court.

The learned judge who heard the summons granted the first and second declarations. He also made an order for costs in the respondents' favour. The instant appeals are directed against his decision. The judgment of the learned judge has been reported. See Kajing Tubek & Ors. v. Ekran Bhd. & Ors. [1996] 3 CLJ 96 . The thoroughness with which he has dealt with the facts and chronology of events and the history of the relevant legislation makes it unnecessary for me to regurgitate these. I therefore propose to confine myself to only so much of the salient features of the case as I consider essential to these appeals.

The respondents' complaint relates to the Bakun hydroelectric project ('the project') which Ekran is in the process of constructing near Belaga in the Kapit Division of the State of Sarawak. The project involves the inundation of a very large tract of land, the creation of a reservoir and a water catchment area. The whole of the affected area belongs to the State of Sarawak. As to this, there is no dispute.

Although ownership of the land is by law vested in the State of Sarawak, about 10,000 na