Pharsalus Inc. v Commission of the Guyana Geology

• Jurisdiction: Guyana
• Judge: Singh, C.,Cummings-Edwards, J.A.
• Judgment Date: 16 February 2012
• Neutral Citation: GY 2012 CA 1
• Docket Number: Civil Appeal 4 of 2009
• Court: Court of Appeal (Guyana)
• Date: 16 February 2012

Court of Appeal

Singh, C (Ag.); Cummings-Edwards, J.A.; Patterson, J.

Civil Appeal 4 of 2009

Pharsalus Inc.

and

Commission of the Guyana Geology

Appearances:

Mr. Vidyanand Persaud for the appellant.

Mr. Fitz L. Peters for the respondent.

Judicial Review - Intention to grant rights for exploration of radioactive minerals and rare earth elements — Whether intention was unlawful — Unreasonableness.

Singh, C.

1 The appellant Pharsalus Inc. (hereinafter referred to as Pharsalus) is a locally registered company. During the year 2006, Pharsalus being interested in Guyana's mining potential made application to the Guyana Geology and Mines Commission (hereinafter referred to as the Commission) for permission to conduct geological and geophysical surveys for radioactive minerals and rare earth elements in the North West District of Guyana.

2 Upon receipt of Pharsalus' application, the Commission published in the Official Gazette a Notice of its Intention to grant Pharsalus exclusive permission to occupy the area described in its application and to conduct geological surveys thereon. The said notice also invited persons who were likely to be adversely affected by the permission the Commission intended to grant Pharsalus to enter opposition thereto. No opposition or objection was received by the Commission. Consequently, Pharsalus was granted by Prime Minister Samuel Hinds (in his capacity as the Minister of Mines and Minerals) the exclusive right to occupy the area sought, to conduct geological and geophysical surveys for radioactive minerals and rare earth elements.

3 It appears from the record, that during the year 2005, another locally registered company, Stratagold Inc., (hereinafter referred to as Stratagold) had applied to the Commission to be granted a prospecting licence to facilitate its exploration for gold and valuable minerals in the said North West District area. It appears that the area of land for which Pharsalus was granted exclusive rights of occupation fell within the area for which Stratagold had been granted a prospecting licence. In or around the month of June 2007, Pharsalus became aware that Stratagold was actively exploring for radioactive minerals and rare earth elements within the area granted to it so to do. As a result on June 21, 2007 Dominic O'Sullivan, the Director/Secretary of Pharsalus, wrote the Commissioner of the Geology and Mines Commission to protest Stratagold's incursion into the area for which it had been granted exclusive rights of occupation, as well as the fact that the Commission was intending to amend Stratagold's Prospecting Licence which it had been granted in 2005 to include a right to explore for radioactive minerals and rare earth elements. O'Sullivan, on behalf of Pharsalus, sought from the Commission confirmation in writing that it would not grant licences to Stratagold or any third party in diminution of Pharsalus' rights under its exclusive permit.

4 By notice dated June 19, 2007, the Commission published in the Official Gazette its Notice of Intention to grant to Stratagold an amendment of its Prospecting Licence of 2005 to include rights for exploration of radioactive minerals and rare earth elements. By the said notice the Commission advised any person claiming any right or interest to or in the mineral and elements to be included in Stratagold's licence to lodge objection to the proposed amendment of Stratagold's prospecting licence.

5 Acting as advised, Pharsalus on the 10th July, 2007 lodged its objection to the amendment of Stratagold's prospecting Licence with the Commissioner and therein raised several grounds of objection, particularly emphasing that the course proposed by the Commission was unlawful. Stratagold lodged an answer to Pharsalus' opposition to the proposed amendment of its prospecting licence. Like Pharsalus, Stratagold also addressed its answer to the Commissioner.

6 Thereafter on July 30, 2007, O'Sullivan and Mr. Vidyanand Persaud, Attorney-atLaw, who appears for the appellant in these proceedings, attended a meeting chaired by the Prime Minister Samuel Hinds. A senior staffer of the Commission also attended as the representative of the Commissioner. Nothing is known of what course the meeting took but there is agreement that the Prime Minister declared that he agreed with the Commission's intention to amend Stratagold's prospecting licence.

7 Given the position of the Prime Minister (who as I indicated earlier held portfolio responsibility for Mines and Minerals) Pharsalus approached the High Court by Motion in the Commercial Division, seeking the following orders:

• a. An Order or Rule Nisi of Certiorari directed to the Commissioner of the Guyana Geology and Mines Commission of Upper Brickdam, Georgetown, a public officer, to show cause why the intention of the Guyana Geology and Mines Commission to grant Stratagold Guyana Inc. the rights for exploration of radioactive minerals and rare earth elements thus amending Prospecting Licence No. 35/2005 granted on January 26, 2006 to include the said minerals and elements, which intention has been set out in a Notice of Intention to grant Prospecting Licence published in the Official Gazette of June 23, 2007 should not be quashed on the grounds that the said intention is unlawful, discriminatory, improper, unreasonable, unfair, arbitrary, null, void and of no effect.

• b. An Order or Rule Nisi of Prohibition restraining the Commissioner of the Guyana Geology and Mines Commission from amending Prospecting Licence No. 35/2005 granted on January 26, 2006 to Stratagold Inc to include the rights for exploration of radioactive minerals and rare earth elements and that the said Commissioner be ordered to show cause why the said Order or Rule nisi of Prohibition should not be made absolute.

• c. An Order or Rule Nisi of Mandamus directed to the Commissioner of the Guyana Geology and Mines Commission compelling him to revoke, rescind and annul the Notice of Intention of the aforesaid Commission to grant to Stratagold Guyana Inc. the rights for exploration of radioactive minerals and rare earth elements thus amending its Prospecting Licence No. 35/2005 granted on January 26, 2006 to include the said minerals and elements, which said Notice has been published in the Official Gazette of June 23, 2007.

• d. An Order of Rule Nisi of Mandamus directed to the Commission of the Guyana Geology and Mines Commission compelling him to grant to the Applicant a Prospecting Licence (Large Scale) for radioactive minerals and rare earth elements in respect to the area described in the application for such licence made by the Applicant to the Commission on July 10, 2007, the said area being part of the area described in Annex A of Permit numbered PGSS 01/07 for Geological and Geophysical Survey granted to the Applicant on the 26th day of February, 2007.

• e. Such further or other orders as may be just and proper.

• f. Costs.

8 During the course of arguments our attention was drawn to what appears to be a grave irregularity in the court below, being one which ought never to be repeated. This matter had been engaging the attention of the Commercial Court Judge, Mr. Justice Bovell-Drakes, who took the Motion off the Court's List. That in itself was an irregular occurrence since the Commercial Court had a previously established reputation for the timely disposal of its cases. Such a step could only have led to unnecessary delay.

9 Sometime thereafter, the matter was called up and dealt with by the Acting Chief Justice, who was never designated a Commercial Court Judge. There is nothing recorded on the High Court file which explains how a Commercial Court case came to be called for hearing before the Acting Chief Justice.

10 In his decision, the acting Chief Justice, declined to make absolute the Orders nisi which had been granted by the then Commercial Court Judge. From a reading of the decision of the acting Chief Justice, I have distilled four main reasons which informed his decision which was favourable to the Commission and by which he discharged the Orders nisi which had been made by the Commercial Court Judge.

11 His Honour determined that in its Motion, Pharsalus —

• a. did not disclose a prior demand to the Commission for the matters it sought to compel the Commission to do;

• b. was guilty of a material non-disclosure;

• c. Pharsalus had no basis for any legitimate expectation that prospecting licences for radioactive materials and for rare earth elements would not be granted by the Commission to other persons during the currency of the exclusive permission granted to it, nor could Pharsalus entertain any legitimate expectation against the Commission or the Commissioner, since neither granted Pharsalus' exclusive permission;

• d. the orders or rules nisi of certiorari, prohibition and mandamus were improperly issued against the respondent Commissioner in contradistinction to the Commission.

12 In dealing with these as the major issues which informed the various decisions contained in his judgment, the learned acting Chief justice on several occasions commenced his consideration of those issues with the words, “Counsel for the respondent Commissioner submitted…”

13 The decision was typed on fifteen (15) pages of legal size paper, and in those fifteen pages, there were only two (2) references to the appellant's case. The appellant in its Affidavit in Support of Motion had raised a number of issues, viz., that —

• – it had been granted exclusive permission to conduct surveys as aforesaid; it expected that the Commission would faithfully discharge its statutory responsibility for the enforcement of its exclusive rights;

• – any prospecting licence granted to Stratagold would be contrary to the provisions and intent of the permission for surveys that it had been granted;

• – the grant of a prospecting licence was contrary to...