Latest Update from Save Malaysia Stop Lynas (SMSL)

Latest update from Court Of Appeal in Putrajaya

Today's case at the Putrajaya is about Lynas's appeal to keep the defamation case in KL court and here is the outcome brief by SMSL lawyers:

The Court of Appeal this morning unanimously dismissed LYNAS' appeal with costs of RM20,000.00 and ruled that the High Court judge was correct in deciding to transfer the case to the Kuantan High Court. The Court of Appeal was of the view that the forum conveniens (most appropriate forum) to hear the defamation suit is the Kuantan High Court.

It is the second time that we get awarded costs by the Malaysian courts:

Once when we won the case on Lynas application to shut us up. We got RM 5,000

Today we won another round at the appellate court and this time round we got RM20,000

LYNAS – THE JOURNEY TO NOWHERE

WHY the CEO sold so much of his own shares in LYC last year if its such a lucrative company ?

Here is of a piece of comment shared by rare earth market analyst:  

 

LYNAS – THE JOURNEY TO NOWHERE

1murf on 16/10/2012 — Leave a Comment

Back in January this year, investors were becoming dispirited with progress on LAMP completion.  I wrote an article for this site called “Where Lynas is at”.  My final summation was:

“Clearly, Lynas will no longer be the same company after POL approval.  It should be one heavily in demand.  At a time when investors are looking for a safe place to invest, yet one with outstanding returns, many will want to be a part of it.”

The article was premature and I strongly regret writing it.  10 months later, the LAMP has been completed  less than 2 months, the Pre-Operating Licence has been approved, issued and then suspended.  It remains suspended.

Along the way, I have seen countless strong supporters of the company lose most of their assets as the continued delays and uncertainties have allowed the big players to control the market and manipulate the share price as low as 56 cents.

The uncertainties have been greatly assisted by the poor flow of, at times misleading, information from the company.  I will detail what the company has done, how it has poorly informed the market over a considerable period.  It has been the light on the hill on a dark night, enticing us to stagger to the top only to see that light extinguished and another one to appear on the next hill.  And so on.

The LAMP was originally scheduled to be in production by 30/06/11.  Not only is it still not producing, there is not one iota of confidence that it will ever produce.

In my view, the situation has now become so bad that a Trading Halt should be imposed until the market is once again fully informed that the LAMP can either operate or it can’t.

Just follow this timeline of company announcements and see if you agree with me about how the market has been misled:

Sojitz Funding announcement 30/3/11

Budgeted Phase 1 construction costs are fully funded

•The Mount Weld Concentration Plant is completed and is ready for the first feed of ore. Lynas is working on satisfying the final requirements of the WA Department of Environment, which are taking longer than expected to satisfy. Lynas expects to satisfy those requirements within 3 to 4 weeks, and Lynas understands that start up of the Mount Weld Concentration Plant will occur upon satisfaction of those requirements

•The Lynas Advanced Materials Plant (LAMP) is due to be commissioned in 3Q 2011

•All approvals in Australia and Malaysia are in place to complete construction of processing plants

•All major equipment procured

•Lynas has signed six supply contracts and two letters of intent in relation to future production

(The market has now been informed that 30^th June completion will not be achieved.  Completion is now going to happen some time during the next 3 months.  Deliberately not very precise?  This advice is from experts in construction of such plants who not so long before were assuring us that completion would be by 30/6! A later announcement was more precise and used a September date for completion.  Couldn’t be October because that was in the 4^th quarter, wasn’t it, and the Company didn’t want to let on just yet that the 3^rd quarter wasn’t going to be achieved.)

5 Million Hours LTI Free Achieved at Lynas Advanced Materials Plant 30 September 2011

Lynas Corporation Limited (“Lynas”) (ASX:LYC, OTC:LYSDY) is pleased to announce a major milestone in achieving 5 million hours Lost Time Injury (“LTI”) free in the development and continuing construction of the Lynas Advanced Materials Plant (LAMP) in the Gebeng Industrial Estate, near Kuantan, Malaysia.

The Concentration Plant in Western Australia commenced feed of ore on 14 May 2011 and is performing well. First feed of concentrate at the LAMP is scheduled to be achieved in the fourth quarter of 2011. Lynas has received all required approvals to construct the LAMP, and is in the process of applying for all pre-operation and operation approvals.

(Ah, the 30^th of September has now come, so the Company has to announce a later completion date.  Again, it is unhelpful to the market by advising an imprecise time of “fourth quarter of 2011”.  Some investors were able to imagine a possible date of 31/10, some, no doubt were more careful and thought 30/11 more likely, and the rest had every right to believe 31/12/11 was as late as it could go.  Weren’t we all sadly mistaken?!

Quarterly Report 31/10/11

Slight delays in final procurement packages and associated delays in construction and contractor resourcing means it is likely that  first feed to kiln will not occur until early Q1 2012.

For once the company didn’t wait till 31/12 to announce they were wrong – they strung us out that little bit further with “early Q1 2012”.  Now, you could think that might be early January or even early February but certainly not early March.  In any case, whatever you thought that announcement meant, you would have been wrong.

The Chairman, Nick Curtis, gave his address at the AGM on 30/11/11 and said:

 “This time next year I will not be reporting to you the sales we are about to achieve, but rather celebrating with you the reality of our production and sales, and speaking again of the huge potential of our business.”

He also said the LAMP was 78% complete as at 30/9/12.  He didn’t say that with 22% still to go, there was no chance of the deadline of early first quarter 2012 being met.  That was his opportunity to confess to the delays but he said nothing.  Nothing other than that ridiculous statement above which is also clearly false.

Early first quarter 2012 was almost past before he announced as part of the Mt Kellet funding announcement:

“Additional engineering completion requirements and consequential delays in procurement, as well as the recent monsoon season, are the primary causes of the delay for LAMP Phase 1. Based on the latest information from the construction manager, Lynas anticipates first feed to kiln and first production during the second quarter of 2012, subject to regulatory compliance and issuance of the pre-operating licence for the LAMP.”

2 months had gone by during which it must have been clear to all in the Company that the previous deadline of early quarter 1 2012 would not be met.  Why did he wait so long before informing the market?

Another month passed before the next announcement.  It was the Investor Presentation 14/02/12

“LAMP construction: 91% complete

Ready-for-Start-Up program (operational preparedness): 91% complete

Malaysia headcount: 236 (now at 85% of total expected workforce)

Pre-commissioning test packs: 33% complete

Temporary Operating Licence for the LAMP approved

Lynas is on track for first feed to kiln and first production in Q2 2012.“

This was fantastic news.  All the market could think of was that TOL had been approved.  In the euphoria and with the lack of Company explanation, the market believed “TOL approved” meant production could start as soon as the LAMP was ready.  Not so, not so.

30/04/12

“On 1 February, Malaysia’s Atomic Energy Licensing Board (AELB) announced its approval of the Temporary Operating Licence (TOL) for the LAMP in Gebeng, Malaysia. The AELB’s approval decision came after a thorough and extensive review of the project by the Malaysian Government regulatory authorities. An appeal in respect of the AELB’s decision has been lodged with the Minister of Science, Technology and Innovation. The Minister’s decision is expected shortly.

As at the end of the period, construction of Phase 1 of the LAMP was 98% complete and pre-commissioning test-packs were more than 85% complete. Lynas is on track for first feed to kiln in Q2, subject to the issuance of the TOL. “

3 months after approval, we were informed that TOL still had to be ISSUED.  “Approved” didn’t mean approved at all.  Production couldn’t start till TOL was ISSUED.  Oh, shit.  In the midst of that disappointment, the Company lifted our spirits by claiming it was on track “for first feed to kiln in Q2”.  Clearly, the LAMP at “98% complete” was going to ready to go by 30^th June.

“PARLIAMENTARY SELECT COMMITTEE IN MALAYSIA UPDATE 20 June 2012

Lynas Corporation (ASX:LYC, OTC:LYSDY) advises that the report of the Parliamentary Select Committee (PSC) established in relation to the Lynas Advanced Materials Plant (LAMP) was debated in the Malaysian Parliament on 19 June 2012.

As previously announced on 19 March 2012, the Malaysian Government established the PSC with the purpose of helping to raise public awareness concerning the LAMP.

In tabling its report, the PSC makes clear that it has taken into consideration a broad range of issues raised by concerned citizens, special interest groups and NGOs relating to public health and environmental safety, and subjected the LAMP to intense independent, expert scrutiny.

The report recommends that the Temporary Operating Licence (TOL) be issued for the LAMP. In addition, the report notes that Lynas has complied with the standards and laws in Malaysia, which are in line with international standards.”

This again showed that the government believed the TOL should be ISSUED.  Why then, did the AELB not issue it right there and then?  Of equal importance, why did Lynas not use the opportunity to tell the market its 30^th June deadline for completion in only 10 days time was not going to be met?!

Quarterly Activities Report 31/7/12

“The Lynas Advanced Materials Plant (LAMP) Phase 1 construction project in Malaysia was completed Lost Time Injury (LTI) free. The project involved a total of 8,690,000 hours worked without an LTI. Subsequent to the end of the reporting period Lynas Malaysia remains LTI free.

• On 18 June 2012, Lynas announced that the Ministry of Science, Technology and Innovation (MOSTI) Minister, Datuk Seri Panglima Dr. Maximus Johnity Ongkili dismissed the appeal that was lodged under Section 32 of the Atomic Energy Licensing Act in relation to the decision of the Malaysian Atomic Energy Licensing Board (AELB) to approve the issuance of a Temporary Operating Licence (TOL) for the LAMP.

• Lynas also welcomes the findings of the Malaysian Parliamentary Select Committee (PSC) report on the LAMP which recommended that the TOL be issued for the LAMP. The report noted that Lynas has complied with the standards and laws of Malaysia, which are in line with international standards.

• Construction of Phase 1 of the LAMP was completed during the quarter and further progress was made on various pre-commissioning activities. Overall commissioning progress was 64% complete as at the end of the quarter. Construction of the Phase 2 expansion of the LAMP continued during the period and is on track for construction completion in early 2013.”

It waited a full month past the deadline before informing the market that in fact, the LAMP had been completed during June.  Right…so what was this next announcement about?

 “LYNAS Phase One LAMP complete 28 August 2012

Lynas Corporation Limited (Lynas) (ASX:LYC, OTC:LYSDY) has completed Phase One construction of the Lynas Advanced Materials Plant in Malaysia.”

Clearly REAL completion did not occur till 28/8.  Or is it still not complete?  Who knows?  Not I.

“LYNAS RECEIVES TEMPORARY OPERATING LICENCE 5 September 2012

Lynas Corporation Limited (“Lynas”) (ASX:LYC, OTC:LYSDY) confirms that the Malaysian Atomic Energy Licensing Board (AELB) has today issued the Temporary Operating Licence (TOL) for the Lynas Advanced Materials Plant (LAMP).”

So on 5/9/12, the TOL (already approved in February!) was finally issued.  The LAMP was ready to go, concentrate could be imported and production could start.  No, no, not quite.  Somehow, the TOL issue was able to be suspended.  So it is now an approved, issued but suspended licence.  I could ask in wonder, “Who is in charge of Malaysia?”  We all must wonder.

Meanwhile, Lynas has suddenly started informing the market of important developments.  Oh well, it did wait 5 hours before passing on the information about TOL issue being suspended but that didn’t surprise me one bit.  If these court decisions aren’t price sensitive then I know nothing.  Lynas should be in a Trading Halt while these cases run.  I don’t just mean the day of the court appearance, I mean until a decision is handed down.  A FINAL decision.  That is the only way to stop the manipulation of the share price by people who already know the outcome of the legal proceedings.

“UPDATE ON MALAYSIAN LEGAL PROCEEDINGS  25 September 2012

Further to Lynas Corporation Limited’s (ASX:LYC, OTC:LYSDY) announcement dated 10 September 2012, the Kuantan High Court has decided to hear on 4 October 2012 an application by parties associated with the Save Malaysia Stop Lynas group for an injunction in respect of Lynas’ Temporary Operating Licence (TOL). The injunction application is part of an application seeking judicial review in respect of the June 2012 decision of the Minister of Innovation, Science and Technology to affirm the approval of the TOL.”

MALAYSIAN COURT UPDATE  4 October 2012

Lynas Corporation (ASX:LYC, OTC:LYSDY) provides the following update to its ASX announcement dated September 25, 2012, relating to a judicial review of the company’s Temporary Operating Licence (TOL) in Malaysia. The Kuantan High Court has adjourned until 10 October 2012 an application by parties associated with the Save Malaysia Stop Lynas (SMSL) group who are seeking an injunction against the TOL.

The deferral of the matter arose from additional affidavits submitted by Lynas. The applicants requested a brief adjournment to respond to those affidavits.”

Lynas waited till the night before the hearing before supplying the affidavits.  It would have known that would cause a deferral.  You may ask why Lynas did that.  I do.

“MALAYSIAN COURT UPDATE 10 October 2012

Lynas Corporation (ASX:LYC, OTC:LYSDY) provides the following update to its ASX announcement dated October 4, 2012. The Kuantan High Court has reserved its decision on an application by parties associated with the Save Malaysia Stop Lynas (SMSL) group who are seeking an injunction against Lynas’ Temporary Operating Licence (TOL).

The injunction relates to an application by SMSL for judicial review of the Minister of Innovation, Science and Technology’s decision in June to dismiss an appeal against the decision of the Atomic Energy Licensing Board (AELB) to award the TOL.

The High Court is scheduled to deliver its decision on 8 November 2012. Until the decision is delivered, the interim order that was issued by the High Court on September 25, 2012 maintaining the status quo in respect of the TOL will remain in place.”

We are now in limbo till the 8^th of November when some decision will be handed down by the court.  Perhaps the TOL suspension will be lifted.  Perhaps not.

The situation is abysmal.  Lynas is trading in a vacuum.  Trading needs to be halted until a clear picture of the Company’s future is available.

The Company itself needs to drastically change its attitude to the way it informs the market.  It should give accurate deadlines which are met.  Failure to meet them without sufficient reason should come at a cost to those concerned.

Right now, Nick Curtis bears ultimate responsibility for what has happened.  He needs to be told to change his ways or “it’s the highway”.

Court granted interim suspension of the Lynas’ Temporary Operating Licence (TOL)

Press statement of Save Malaysia Stop Lynas (SMSL)

Court granted interim suspension of the Lynas’ Temporary Operating Licence (TOL)

September 25th, 2012

Earlier today at the Kuantan High Court, SMSL was granted an interim stay for its application to suspend the Lynas TOL. Essentially the TOL has now been temporarily suspended by Justice Mariana Yahya pending the court decision on 4^th October in ten days’ time.

Mr Tan Bun Teet, an applicant to revoke the TOL and a spokesperson for SMSL lamented, “This is a small step in the right direction.  We hope that the court will grant a longer stay on the suspension on 4^th October until our earlier judicial review applications are properly assesses and the appropriate judgement made later.”

On the 28th August the Kuantan High Court accepted the following two judicial applications from SMSL:

1. To revoke the temporary operating licence granted by the Atomic Energy Licensing Board (AELB) on 30th January to the Lynas Advanced Materials Plant (LAMP) on the ground that no detailed environmental impact assessment (DEIA) was done and that a fresh radiological impact assessment (RIA) and a radioactive waste management plan (RWMP) should have been submitted to AELB for approval before the TOL was granted. This application was lodged on behalf of Kuantan residents Mr Tan Bun Teet, Encik Syed Talib Syed Sulaiman and Puan Hasimah Ramli by their lead counsel Bastian Vendargon.

2. To review the decision of the Minister of Science, Technology and Innovation (MOSTI) not to revoke the Lynas temporary operating licence following an appeal by a group of Kuantan residents who together with their legal representative and experts, appeared before the MOSTI panel with evidence of risks and harm of the project earlier this year on April 17th. This application was lodged on behalf of Kuantan residents Haji Ismail Abu Bakar and Tan Ah Meng by their lawyer R.S. Pani.

“Today’s interim suspension of the Lynas TOL by Justice Yahya is a welcome gesture.  Of course this is only a very temporary relief and a tiny win.  We have a long way to go yet to Stop Lynas.  Kuantan is a clean and peaceful place.  We do NOT want a polluting rare earth plant in our town.”  Commented Haji Ismail Abu Bakar.

Tomorrow 26^th September SMSL lawyers will return to the KL High Court to discuss the management of the Lynas defamation case against SMSL.  Lynas has earlier failed to get an injunction to gag SMSL.  SMSL maintains that the statement made in an open letter to the Prime Minister of Malaysia has been made in the interest of the public and Malaysia’s natural environmental as well as local health and livelihoods.  The statement is based on fair comments and advice from various experts.

“The public will be waiting anxiously because we do not wish to have a world-scale rare earth plant in our backyard.” Concluded Mr Tan

Kuantan High Court will hear residents’ challenge to Lynas’ licence

Press statement of Save Malaysia Stop Lynas (SMSL)
Kuantan High Court will hear residents’ challenge to Lynas’ licence
Date: Tuesday 28th August 2012

Photo source : http://on.fb.me/OmXahY，http://on.fb.me/PLJcZh

This morning at the Kuantan High Court, SMSL crossed the first hurdle in getting its two judicial review applications accepted by Justice Mariana Yahya as follows:

1.    To revoke the temporary operating licence granted by the Atomic Energy Licensing Board (AELB) on 30^th January to the Lynas Advanced Materials Plant (LAMP) on the ground that no detailed environmental impact assessment (DEIA) was done and that a fresh radiological impact assessment (RIA) and a radioactive waste management plan (RWMP) should have been submitted to AELB for approval before the TOL was granted. This application was lodged on behalf of Kuantan residents Mr Tan Bun Teet, Encik Syed Talib Syed Sulaiman and Puan Hasimah Ramli by their lead counsel Bastian Vendargon.

2.    To review the decision of the Minister of Science, Technology and Innovation (MOSTI) not to revoke the Lynas temporary operating licence following an appeal by a group of Kuantan residents who together with their legal representative and experts, appeared before the MOSTI panel with evidence of risks and harm of the project earlier this year on April 17^th.  This application was lodged on behalf of Kuantan residents Haji Ismail Abu Bakar and Tan Ah Meng by their lawyer R.S. Pani.

About 200 well-wishers and supporters turned up at the court and waited patiently for several hours for the judge to reach her decision.

Mr Tan Bun Teet, one of the applicants and a spokesperson for SMSL said, ”we believe that the Minister (MOSTI) has acted unfairly towards us and his decision was unjust.  We are now taking the matter to the Court to review it and to revoke the TOL.”

Australia’s Lynas Corporation had initially intended to apply to be a party to the proceeding but its lawyer withdrew at the last minute for unknown reasons.

“We were unsure if our applications would be accepted or thrown out of the court on some unknown grounds.  We are very pleased that our applications are accepted by the court.  We look forward to further fair hearings and trial in the near future.” Lamented Haji Ismail Abu Bakar, another Kuantan resident who appeared before the Minister back in April.

The Court will resume at a latter date to determine a hearing date and other related matters.

Mr Tan explained, “Kuantan is our home town. Each and every one of us has invested a lot to make this town a special place.  It is our home.  We have to do everything possible to protect it from harm’s way especially from the risk and hazards of the massive Lynas rare earth refinery plant.”

“It is on this basis that we have persisted, protested and sought legal actions.  We will fight Lynas till the end to protect our home and to create a clean and safe future for Malaysia.” Concluded Mr Tan.

High Court Denied Lynas’ the Injunction to Gag SMSL

Press statement of Save Malaysia Stop Lynas (SMSL)
High Court Denied Lynas’ the Injunction to Gag SMSL

 July 27th, 2012

SMSL was pleased that the Kuala Lumpur high court has rejected Lynas’ second attempt to get a court injunction to gag SMSL yesterday. Over a hundred concerned citizens consisting of Kuantan residents, supporters from interstates and civil society organisation’s representatives congregated at the high court vicinity peacefully with placards and banner in a show of solidarity to express their outrage with the Lynas’ defamation action.

“It is heartening and encouraging seeing justice delivered at this juncture. We are relieved that our freedom of speech to voice our concerns with our own government in the interest of the public and the country is upheld through yesterday’s high court decision.” Lamented Mr Tan Bun Teet, a SMSL spokesperson, a Kuantan resident and a defendant named in the defamation suit.

“Here we are dealing with a world-scale rare earth plant at least ten times bigger than the one in Bukit Merah with hundreds more times hazardous waste. It has been built without any consultation with the public, with lax environmental safeguards and speedy approval processes. What more it is located in a swampy area so close to the sea and the population? We as informed citizens cannot simply sit back and do nothing” Continued Mr Tan

The high court awarded a court cost of RM5,000 to SMSL against Lynas and the court will resume on 14th August to work out details of future trials and hearings.

The fair judgment delivered by Judge John Louis O’Hara is a much welcome gesture of hope for SMSL and concerned Malaysians who have fought hard to stop the Lynas rare earth project since it became widely known for the first time last March through a New York Times article.

Haji Ismail Abu Bakar, another defendant named in the Lynas suit and a Kuantan resident remarked, “many rakyat (citizens) who will be directly and most immediately put at risk once the Lynas plant starts to operate are at no liberty to speak out or to voice their concerns. We breathe a sign of small relief for now but we have a long way to go yet to keep our country safe and clean from toxic pollution.”

Last Thursday on the 19th, the court heard arguments from both Lynas and SMSL counsels. SMSL was represented by senior counsel Datuk Bastian who argued that SMSL acted in the interest of the public in issuing the open letter to the Prime Minister which Lynas alleged is defamatory.

“SMSL will brief its various expert witnesses in Malaysia and overseas in preparation for the trial. SMSL aims to use the trial to reveal information in its possession. We have independent opinions and assessments from various highly qualified professionals. We would like to inform the court and the public of the risks and hazards of the Lynas project to our communities, our livelihoods and the local economy as well as Malaysia as a whole.”

Explained Mr Tan.

Lynas fails to get injunction to gag NGOs

Lynas fails to get injunction to gag NGOs
Aidila Razak • Jul 26, 12 3:14PTG
Rare earth company Lynas Corporation today failed in its bid to gag NGO Save Malaysia Stop Lynas (SMSL) from making public statements against it.


In his judgement Justice Louis O Hara said that the evidence presented before him was "insufficient" to grant the injunction."At this preliminary stage...it is not required for the court to give a definitive decision (on whether there is defamation) without hearing all the evidence."With defence of qualified privilege and fair comment having been pleaded, I'm not satisfied that the affidavit evidence before me is sufficient," the Kuala Lumpur High Court judge said.
The application was dismissed with cost of RM5,000.

Justice O' Hara found that public interest is a "relevant and weighty" defence as the public has the right to know.

Victory for freedom of speech
Speaking to reporters later, SMSL's lawyer Bastian Vendargon said that the decision can be seen as a victory for freedom of speech.

"When he says he is upholding all cases before this, he is careful not to interfere with freedom of speech," he said.

Commenting on the decision, SMSL leader Tan Bun Teet (left) who was at the court house with more than 100 supporters from Kuantan, Pahang, said it was a "small victory" for their struggle."All this while we were speaking out of public interest and not for ulterior motives or personal gain," he said."We hope that in the suit proper (the defamation trial), the whole world would know whatever comments on Lynas and statements on its effects on the community nearby, are true."He added that SMSL will now launch a nationwide tour to educate the public on the alleged dangers of the Lynas Advance Material Plant for rare earth refining, at Gebeng, near Kuantan.
Bun Teet also revealed that he and two other activists, in their capacity as Kuantan residents, are planning to file a judicial review at the Kuantan High Court against the award of the temporary operating licence for the rare earth plant by the Atomic Energy Licencing Board.

Vice chairperson Ismail Abu Bakar and two other Kuantan residents will also file a judicial review at the Kuantan High Court against the Minister of Science and Technology Maxmimus Ongkili, on his decision to reject their appeal on the Lynas TOL.

Giant wounded
Also present was NGO Komas representative Tan Jo Hann who said that today SMSL had "wounded a big giant" which it will finally kill.

On April 19, Lynas Corporation of Sydney, Australia, and Lynas Malaysia filed the suit against SMSL Sdn Bhd and its two directors, Tan Bun Teet and Lim Sow Teow, and three volunteers Hang Chong Leung, Lee Chow Fong and Ismail Abu Bakar, over an allegedly defamatory article published on its blog, on Mar 22.

The defamation case is set for case management on Aug 14.Speaking on the case, Bastian said that he has expressed intention to the judge that he will apply for the case to be transferred to the Kuantan High Court for the convenience of the parties, most of whom are based in Pahang.He will file the application, as well as another application for the court to compel Lynas to provide the defendants with sought documents, next week.