Diamond Quarry Inc. Re

• Jurisdiction: Guyana
• Judge: Chang, C.J.
• Judgment Date: 14 August 2015
• Neutral Citation: GY 2015 HC 20
• Docket Number: 2015 - HC - DEM - CIV - M - 18
• Court: High Court (Guyana)
• Date: 14 August 2015

High Court

Chang, C.J. (Ag.)

2015 - HC - DEM - CIV - M - 18

Diamond Quarry Inc. Re

Appearances:

Mr. Robert Ramcharran for the applicant.

Mr. Ralph Ramkarran, S.C for the respondent.

Administrative law - Whether the respondent's decision to order a sub—division of land was procedurally improper and misuse of public law powers — Legal basis for sub—division of land — Legitimate expectation — Whether the respondent's refusal to grant the applicant a quarry licence was unconstitutional and unlawful — Whether the respondent should be prohibited from issuing any licence to any other person or entity on the area of land in issue — Regulations 41 and 48 of the mining regulations — Section 89 of the Mining Act.

1 Chang, C.J. (AG.): On the 11th March 2015, by way of Notice of Motion, the applicant, Diamond Quarry Inc., applied to the court for the following prerogative reliefs:

• (a) An Order or Rule nisi of Certiorari directed to the Commissioner of the Guyana Geology Commission to show cause why a Writ of Certiorari should not issue to quash the decision of the Guyana Geology and Mines Commission to order a sub-division of the land which is known and described as:

2 Tract of State land located in the Mazaruni Mining District No. 3 as shown on Terra Surveys Topographic Map 275E at scale 1: 50,000 with reference point “X” located at the confluence of the Essequibo River and Hurikabra Creek with geographical coordinates of longitude 5 35' 11” W and latitude 6 13' 23” N.

3 and enclosing an area of approximately 848 acres as more fully described in an advertisement contained in the Official Gazette dated 16/09/14 under the heading “Notice of Intention to grant Quarry Licence” applied for by Diamond Quarry Inc. for the granting of a quarry licence on the grounds that such a decision is procedurally improper, in bad faith, capricious, unreasonable, and abuse or misuse of public law powers and in denial of the rule of legitimate expectation.

• (b) An Order or Rule nisi of Mandamus directed to the Commissioner of the Guyana Geology and Mines Commission to show cause why a Writ of Mandamus should not issue to direct the Guyana Geology and Mines Commission to grant Diamond Quarry Inc. a quarry licence to quarry for stones over the aforementioned described area of land on the grounds that the refusal by the Guyana Geology and Mines Commission to issue a quarry licence to Diamond Quarry Inc. to quarry for stones over the afore-mentioned area is unconstitutional, unlawful, capricious, unreasonable, procedurally improper, in bad faith, an abuse or misuse of public law powers and in denial of the rule of legitimate expectation.

• (c) An Order or Rule nisi of Prohibition directed to the Commissioner of the Geology and Mines Commission to show cause why a Writ of Prohibition should not issue to prohibit the Guyana Geology and Mines Commission from issuing a quarry licence or any other licence under the Mining Act 1989 to any other person or corporate entity over the aforementioned area of land on the grounds that the issuance of any such licence to any other person or entity by the Guyana Geology and Mines Commission would be unconstitutional, unlawful, capricious, procedurally improper and an abuse or misuse of public law powers and in denial of the rule of legitimate expectation.

• (d) Such further or other order as the Court may deem just.

• (e) Costs.”

4 In his Affidavit in support of Motion sworn to by Doodnauth Samaroo, Managing Director of Diamond Quarry Inc., on behalf of the applicant, he deposed that G.G.M.C is a body corporate and that, among its functions, is the granting of quarry licences to quarry for stones over any State land in Guyana. He is a self-employed businessman/contractor and is primarily involved in the construction of sea defences throughout Guyana.

5 He deposed that, on the 28th March 2014, he made an application on behalf of Diamond Quarry Inc. to G.G.M.C in accordance with section 89 of the Mining Act 1989 for the grant of a quarry licence to quarry for stones over the under-mentioned area:

“Tract of State land located in the Mazaruni Mining District No. 3 as shown on Terra Surveys Topographic Map 27SE at scales 1:50,000 with reference point “X” located at the confluence of the Essequibo River and Hurikabra Creek with geographical, coordinates of longitude 58 35' 11” W and latitude 6 13' 23”N”

6 and enclosing an area of approximately 848 acres and as more fully described in an advertisement contained in the Official Gazette dated 16/09/14 under the heading “Notice of Intention to grant Quarry Licence” (Exhibit A), the said land being State land. Before making the application to G.G.M.C, he did all the necessary research work to ensure that the land applied for was not legally held by anyone or applied for by anyone. His research from the records available at G.G.M.C revealed that no one had any right or interest in the said area in respect of which his application was made and no one had ever applied for that land for quarry purposes. He duly paid the prescribed fees on the 28th March 2014 and complied with all the statutory requirements (Exhibit B – copy of receipt of payment of prescribed fees).

7 He deposed that, following payment of those fees, on the 15th October 2014, G.G.M.C wrote to him requesting the submission of the following additional documents:

• (1) Environmental Management Plan for a period of no less than five (5) years in accordance with Mining Regulation 226(1).

• (2) Closure Plan in accordance with Mining Regulation 227(1).

• (3) Environmental Bond as determined by the Commissioner in Form 19 of the 1st Schedule to the Mining Regulations.

8 He duly complied with that request from G.G.M.C.

9 He deposed that in that letter from G.G.M.C, the Commission stated:

“The Guyana Geology and Mines Commission has favourably considered your application and an “Intent to grant Quarry Licence will be published.”

10 Pursuant to that undertaking and, in accordance with section 89 of the Mining Act, 1989, G.G.M.C caused to be published in the Official Gazette dated 16th September 2014 a “Notice of Intention to grant Quarry Licence” which read:

“Any person who claims he has any right or interest to the area to be granted and will be injuriously affected by the grant of a quarry licence may within twenty-one (21) days after publication of the first advertisement lodge with the Guyana Geology and Mines Commission a petition objecting to the grant of quarry licence” (Exhibit A).

11 He deposed that, to the best of his knowledge, information and belief, since the publication of that Notice of Intention, no one had ever lodged with the G.G.M.C any petition objecting to the grant of the quarry licence to Diamond Quarry Inc. Subsequent to that advertisement, he had two meetings with the G.G.M.C at which the Permanent Secretary, Ministry of Natural Resources, and some other applicants, who had also applied for quarry licences, were present. At one of those meeting, he and others were told that their applications would be fast-tracked as Guyana was experiencing great difficulties in securing enough stones to carry out its infrastructural activities. He was specifically asked by representatives of the G.G.M.C at that meeting to state how early he could have started production and he responded that he could start production within 3 months of the grant of licence. He was given all assurances by the representatives of the G.G.M.C that the licence would be granted to Diamond Quarry Inc. and that he must start making preparations for the commencement of operations. Subsequent to the assurances given to him by G.G.M.C that the licence would be granted, he was invited to another meeting on the 10th February 2015 with the G.G.M.C. Present at that second meeting were Donald Singh, the Land Management Manager of G.G.M.C, and a representative of Baracara Quarries. At that meeting, he was told by G.G.M.C for the first time that Baracara Quarries had applied for the same land many many years before Diamond Quarries Inc. had made its application. He vehemently objected to that new position taken by G.G.M.C pointing out to G.G.M.C that:

• (a) His research at the G.G.M.C revealed that no application was ever made for a quarry licence for the said area by anyone.

• (b) There is no record at the G.G.M.C to show that anyone has ever applied for a quarry licence to the said laid.

• (c) If there was any conflict with his application, G.G.M.C would not have proceeded with his application and caused that advertisement to be done. Further, there was no objection to his application by anyone.

12 He deposed that G.G.M.C was unable to answer his concerns and he was told that he would hear from G.G.M.C later. The meeting ended abruptly and no decision was there taken. On the 16th February 2015, he received a written correspondence from G.G.M.C purporting to summarise the outcome of the earlier meeting on the 10th February 2015. Upon receipt of that correspondence, he immediately came to the conclusion that mischief was afoot on the part of G.G.M.C as he had had several meetings before with G.G.M.C and was never given a summary of the outcome of any of that correspondence. He noticed that it was stated therein that the representatives of Baracara Quarries and Diamond Quarry had agreed to an sub-division of the land (Exhibit C). He immediately dispatched a reply dated 16th February 2015 to G.G.M.C pointing out that he had never agreed to any sub-division of the land (Exhibit D).

13 He deposed that he was summoned by G.G.M.C to a further meeting on the 3rd March 2015. Present at that meeting were Ronald Singh from G.G.M.C and Rahaman from Baracara Quarries....