Bukit Kukus road: Strong response to lifting of stop-work order

Who will bear responsibility for any future tragedy along this controversial hill road? Let’s not even talk about the mega Pan Island Link project that will tunnel through and hug risky hill slopes.

Why wasn’t there a detailed EIA for the Bukit Kukus road, which is on such risky slopes?

And why aren’t they making public the findings of the investigation into the tragedy? So much for public accountability.

Read this excellent statement by CAP/SAM:

Sahabat Alam Malaysia (SAM) and the Consumers Association of Penang (CAP) call on the Penang state government to make public its findings into the Jalan Bukit Kukus landslide tragedy and to disclose the conditions under which works are being allowed to proceed.

This call is made in the wake of works being allowed to proceed on the road, following the lifting of stop-work orders issued by the Department of Occupational Safety and Health as well as the Penang Island City Council (MBPP), as reported in the media today.

Given that the state had carried out internal investigations into the tragedy which occurred on 19 October 2018, which saw the loss of nine lives, it is vital for the findings to be made public, so that there is transparency in the process.

We would like to know if the relevant authorities are being held accountable for their inaction in relation to the tragedy.

It is also critical to know what measures are being taken and conditions imposed to ensure that there will be no repeat of any untoward incident once work on the road project commences.

In response to claims by the authorities that no environmental impact assessment (EIA) report was needed for the project, CAP has written to the chief minister, the council mayor and the Department of Environment (DoE) asking how the project was exempted from such a requirement.

According to state officials, an EIA was not required, as this was the view of the DoE, and an exemption letter was given.

The authorities must clarify why an exemption was given for this project, when the project involves hill land above 76m and slopes exceeding 25 degrees.

Our understanding of the law on the matter is as follows:

The approval for the road construction was given sometime in 2013-2014.

The relevant law that applied then was the Environmental Impact Assessment (Prescribed Activities Order) 1987.

From 20 June 2011, the DoE had a list of “prescribed activities”, which required a detailed EIA, which means that public feedback must be sought on the detailed EIA for the project, prior to any approval.

Among the listed projects are “project involving land clearing where 50% of the area or more having slopes exceeding 25 degrees (except quarry)”.

In our view, this is meant to cover any type of project on risky hill slopes.

In the case of the Bukit Kukus road, much of the project involves the clearing of areas which exceed 25 degrees, and regardless of the type of road (whether ‘collector road’ or some other road), a detailed EIA should have been required.

It is untrue to say that the law does not require an EIA, when the DoE’s list of activities requires an EIA for a project of this nature. Why such an exemption was given by the DoE must be made public by the department.

A second point that must be addressed relates to non-compliance with the current Penang Structure Plan. The Structure Plan contains a general prohibition against any form of development on lands with a slope of more than 25 degrees or lands situated at more than 75m (250 feet) above sea level (ie hill lands).

The Structure Plan only allows for limited development on hill land if a project is categorised as a “special project”. The plan does not define what is a special project is.

But there are “Guidelines on Special Projects”, which were approved by the State Planning Committee in 2009. Under these guidelines, any infrastructure project that is of importance to the government and is for public use which cannot be avoided from being on hill land can fall in the category of “special project”.

If the Bukit Kukus road project was such a special project as per the guidelines, then the Structure Plan states clearly that the development must be subject to strict controls by complying with guidelines for hillslope development and it must also have an approved EIA in addition to approval from the State Planning Committee.

Given the above, not having an EIA for the Bukit Kukus road is a clear violation and non-compliance of the Structure Plan.

The Penang Structure Plan has legal effect as it is done under the Town and Country Planning Act 1976 and is a gazetted document.

The state authorities including the city council as well as the DoE must abide by the Structure Plan and should have ensured that a detailed EIA was done for the project. This detailed EIA should have been subject to public display and consultations prior to any approval for this project.

Clearly, by not having an EIA done, there has been a non-compliance with the Structure Plan. This is a serious transgression of the law and guidelines by the authorities themselves.

The Bukit Kukus landslide tragedy cannot be regarded merely as a work-site tragedy. It involves a project on sensitive hill land, given that the project is clearly above 76m and involves gradients of 25 degrees and above.

The state authority, the city council and the DoE must explain how they allowed non-compliance of the Structure Plan as well as the EIA guidelines. If the authorities themselves did not follow the laws, they must be held responsible and accountable for their inaction too.

We therefore demand an explanation from the chief minister, the city council mayor and the director-general of the DoE in this regard.

This is too serious a matter and cannot simply be regarded as a work-site tragedy with blame being passed on to the contractors involved in the project. The authorities themselves must accept some blame and responsibility for their inaction.

Therefore, we would like the findings of the investigations done by the state to be made public, to understand if the relevant authorities are going to be held accountable for their inaction.

SM Mohamed Idris is president of Sahabat Alam Malaysia and the Consumers Association of Penang.