-court rules that refusal to renew medium-scale
permits on proposed titled lands unlawful
The Guyana Geology and Mines Commission’s refusal to renew medium-scale prospecting permits, for properties for which Amerindian communities are seeking land titles, has been found to be unlawful.
Acting Chief Justice Ian Chang last Friday made absolute an order quashing the decision by the GGMC to refuse to accept the appropriate prescribed fees and rental payments for the permits, after finding that its refusal, on the basis of instructions from Prime Minister Samuel Hinds and applications by Amerindian communities for land titles, was not proper. He also made absolute orders compelling the GGMC to receive the fees and payments and prohibiting it from refusing to do so.
The ruling was based on an application by way of a motion made by the Guyana Gold and Diamond Miners’ Association (GGDMA), through attorney Roysdale Forde, in which it described the move as unreasonable, of no legal effect and in breach and a denial of the principles of natural justice as it affects all members of the association. Senior Counsel Ralph Ramkarran represented the GGMC.
In an affidavit in support of the motion to have the decision quashed, Patrick Harding, president of the GGDMA, said that Alfro Alphonso, who is the holder of a medium-scale prospecting permit, sought to pay the prescribed fees and/or rental for several permits in October last year and again in March this year, but the GGMC refused to accept them.
The affidavit said that on both occasions the GGMC “refused and failed” to provide any reason for its action. Alphonso, Harding said, wrote to the commissioner of GGMC about the issue and on April 3, Kampta Persaud, deputy commissioner of GGMC, on behalf of the commissioner, responded. “Please be advised that the commissioner had instructed the Land Management Department, based on the instructions from the Hon Prime Minister, then the Minister of Mines and Minerals, not to process any application or accept any payment for mineral properties falling within Amerindian titled areas or proposed titled areas. This instruction is still in effect,” Persaud wrote.
As a result, Harding noted that the reasons listed by Persaud affects the renewal of permits throughout the country and was “adversely affecting” the entire mining industry.
He cited renewals being sought in Tesserine, Kangaruma, Eclipse Falls, Arau Extension, Karioka, Parabara, Jawalla, Kurutuku Extension, Monkey Moun-tain Extension, Karau Extension, Matarkai, Hotoquai Extension, and Bethany Extension, where some 438 mining properties, covering about 433,855 acres in total, would have been affected by the GGMC’s decision.
Harding further said that as a result of the refusal by the GGMC, the holders of medium-scale prospecting permits were being deprived of their statutory right and benefit under the Mining Act.
No jurisdiction
In response to the Harding’s affidavit, GGMC’s Land Management Officer Faye Prescott deposed that the lands covered by the prospecting permits of Alphonso are within the boundaries of Amerindian village lands of Tesserine and Kangaruma or if not, are contiguous with those lands and are not the subject of any agreement with the respective village councils. She also said it had not been demonstrated to the GGMC to its satisfaction that the effects of mining will not be harmful. A map was attached to show that the lands are within the boundaries of an area of the proposed Amerindian titled lands for the two villages.
Justice Chang noted that Persaud’s letter referred to instructions from the Prime Minister as well as the fact that the areas covered by Alphonso’s permits fall within proposed titled areas. However, he said Section 59 of the Mining Act, which provides for the renewal of a prospecting permit on an application and on payment of fees, did not render the GGMC’s exercise of its discretionary power subject to the direction or instruction of the Minister of Mines and Minerals. “In other words, unless parliament itself has put such a limitation on the exercise of the discretionary power which it has conferred on the GGMC, the exercise of such power cannot be suspended or put into abeyance by the Executive Minister,” the judge found. “Thus, the instruction of the Minister to the GGMC was given without jurisdiction and was without legal effect,” he added, while noting that the GGMC’s refusal to renew the permits on the basis of the minister’s instruction was simply an unlawful dereliction of statutory duty and on that basis alone must be quashed.
Grossly unreasonable
Justice Chang also found that it would be “grossly unreasonable” for the GGMC to refuse to renew the prospecting permits on the ground of an existence of an application by a nearby Amerindian village to extend its village area to include those lands covered by the permit.
Such a move would make the exercise of the GGMC’s statutory discretionary power subject to or conditional upon the absence of such an application for an extension by the Amerindian village, he noted. “The GGMC by making of such a negative decision would in effect be imbuing the application for extension with a prohibitive power over its own statutory power as a matter of course,” he said, adding that the GGMC would be irrationally subjugating its own statutory discretionary power to the making of an application.
According to Justice Chang, if the application for extension of the village area were to succeed, it would mean that the applicant, not being the holder of a pre-existing claim, or mining licence, would become subject to certain obligations imposed by the Amerindian Act in respect of his prospecting operations. He pointed out that the application by the adjacent Amerindian villages for an extension of the village area to include the lands covered by the prospecting permits is therefore “not at all a rational basis for the refusal of the GGMC to accept the applicant’s renewal fees or to consider his application.”
Further, Justice Chang noted that while the GGMC sought to invoke the provisions of the Amerindian Act to justify its decision, it was the court’s view that the section it cited had no application to the facts and circumstances of the case as it relates to lands, rivers, creeks, and waterways in respect of which GGMC has not already issued a permit, concession, licence, or other permission. He indicated that the approach of the court might have been different if the applicant was applying for the issuance of original prospecting permits rather than a renewal of existing permits because, in both cases, the GGMC would have to satisfy itself that there are proper grounds for its decision or action, that is proper grounds for issuing the permits and proper grounds for non-renewal of the existing permits. “The existing case concerns the GGMC’s refusal of an application for renewal of existing prospecting permits which the court finds is not supported by any proper legitimate ground,” he said.
Justice Chang said while the applicant has no absolute right to have his prospecting permits renewed under Section 59 of the Mining Act, it does appear that since the exercise of the discretionary power of refusal of renewal by the GGMC is restrictive and in denial of one’s right to continue to work, refusal by the GGMC must be based on some proper or legitimate grounds and not on grounds which are improper or irrelevant.
In addition to securing the orders it sought, the GGDMA was also awarded costs in the sum of $75,000.
