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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2018- 01159

IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAP 7:08

AND

IN THE MATTER OF THE DECISION OF THE MINISTER OF ENERGY AND ENERGY INDUSTRIES

DATED 9TH JANUARY 2018 TO RESCIND A DECISION TO GRANT A MINING LICENCE TO THE

INTENDED CLAIMANT IN THE NATIONAL INTEREST FOR CERTAIN STATE LANDS AT MELAJO

BLOCK E AND TO FAIL AND/OR OMIT TO TAKE ALL SUCH STEPS AS ARE NECESSARY TO

ENSURE THAT THE INTENDED CLAIMANT IS PLACED IN A POSITION TO BE GRANTED THE SAID

LICENCE

BETWEEN

BRENDON WEST

(TRADING AS WEST AND ASSOCIATES)

Claimant

AND

THE MINISTER OF ENERGY AND ENERGY INDUSTRIES

Defendant

BEFORE THE HONOURABLE MADAME JUSTICE M. DEAN-ARMORER

Appearances: Mr. Kelvin Ramkissoon and Mr. Leon Kalicharan, attorneys-at-law for the Claimant Ms. Karen Boodan and Ms. Michelle Benjamin, attorneys-at-law for the Defendant

REASONS

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Introduction

1. Brendon West, was the principal of West and Associates, a business engaged in civil and

infrastructure works, heavy equipment rental and the supply of aggregate and aggregate

products.

2. In June 2015, Mr. West obtained pre-approval for the grant of mining licence under the

Minerals Act Chap 61:03. Together with the grant of pre-approval, Mr. West received

instructions to provide specific documents and approvals from other governmental

agencies. In January 2018, after having worked assiduously to provide the required

documents, Mr. West received a letter rescinding his licence. As a result, Mr. West

instituted this application for judicial review claiming that the decision of the Minister to

rescind his licence was irrational, procedurally improper and illegal.

3. On July 31, 2019, I delivered judgment for the Claimant, holding that the impugned

decision was irrational and procedurally improper. My reasons for so doing are set out

below.

Procedural History

1. On April 06, 2018, the Claimant filed an application for leave to apply for judicial review

pursuant to Part 56.3(3) Civil Proceedings Rules, in respect of the decision of the Defendant

to revoke its decision to grant a mining licence to the Claimant. The application for leave

was supported by the Claimant’s affidavit filed on April 6, 2018. The Claimant filed a second

affidavit on April 11, 2018.

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2. The Court granted leave to apply for judicial review on April 20, 2018. Pursuant to the grant

of leave the Claimant made an application for judicial review by a Fixed Date Claim Form

on April 24, 2018, seeking the following relief:

a. “A declaration that the decision dated 9th January 2018 to rescind the decision to

grant to the Intended Claimant a mining licence in the national interest for certain

state lands situate at Melajo Block E (“the said decision”) is illegal, irrational,

procedurally improper, null and void and of no effect.

b. An order of certiorari to bring into this Honourable Court and quash the said

decision.

c. Consequent upon the said order of certiorari, an order that the Honourable

Minister of Energy and Energy Industries do forthwith re-consider afresh the

application of the intended Claimant dated 20 March 2014 for the grant of a

mining licence.

d. A declaration that the said decision contravenes the legitimate expectation held

by the intended Claimant.

e. An order that the Intended Defendant do provide reasons for the said decision.

f. A declaration that the failure and/or omission of the Honourable Minister of

Energy and Energy Industries to do all such things and take all such steps as are

necessary so as to ensure the processing of the intended Claimant’s mining licence

is illegal, irrational, procedurally improper, null void and of no effect.

g. An order of mandamus directing the Honourable Minister of Energy and Energy

Industries to take all such steps as are necessary to grant the intended Claimant a

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mining license in the national interest for a period of five (5) years with respect to

a 16.1878 hectare (40 acre) parcel of State land at Melajo Block E.

h. Damages.

i. Costs

j. Such further or other reliefs that the Court may consider just and expedient”

2. By Notice of Application filed on April 20, 2018, the Claimant applied for the interim relief in

these terms:

“The Intended Defendant or its emanation, the Minerals Advisory Committee by

its servants and/or agents be restrained and prohibited from receiving and

processing the application for mining and/or processing licenses for the parcel of

State Lands, located at Melajo Block E pending the hearing and determination of

the application for leave to apply for Judicial Review filed on April 06, 2018”

3. The application for interim relief was determined on July 17, 2018 when the Court made

the following order:

“The Defendant be restrained from receiving and processing applications for

mining and or processing licences for the parcel of State Land located at Melajo

Block E pending the hearing and determination of this application for judicial

review.”

On that occasion, the Court gave directions for the filing of written submissions on the

substantive application for judicial review.

4. On June 28, 2018, the Claimant filed a Notice of Application which sought the Court’s

permission to file and serve a further affidavit of the Claimant. A draft affidavit was also

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filed on even date. The Claimant applied for an order without a hearing. I considered the

application and held the view that the sole purpose of the affidavit was to place before the

Court the licence which had been granted in 2011. This document was not in dispute. I

therefore decided to grant the permission as sought for the use of the 5th affidavit of

Brendon West.

5. Written Submissions were filed on behalf of the Claimant on August 28, 2018 and on behalf

of the Defendant on, October 10, 2018. The Claimant filed submissions in reply on October

22, 2018.

Facts

6. The following facts were gleaned from the six affidavits which were filed by the Claimant,

as well as the affidavit of Monty Beharry which was filed on behalf of the Defendant. 1

7. The Claimant, Mr. Brendon West, was, at all material times the principal of West and

Associates, which is a sole trader company, registered under the Registration of Business

Names Act2. The business, West and Associates was, at all material times, engaged in the

business of civil and infrastructure works, the rental of heavy equipment and the supply of

aggregate and aggregate products.

8. In the year 2008, during Trinidad and Tobago’s construction boom, Mr. West, through his

company, sought to procure the approval of the Ministry of Energy and Energy Industries,

for a mining licence, more commonly known a quarry licence.

1 Affidavits were filed by the Claimant on April 6, 2018, April 11, 2018, April 20, 2018, May 2, 2018, June 01, 2018 (Reply Affidavit), June 28, 2018 and October 23, 2018. 2 Registration of Business Names Act 82:85

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9. The Director of Minerals, by letter dated September 18, 2008, informed Mr. West that the

Government had agreed to award his company, a mining licence in respect of a 20 acre

parcel of State Land. The land was located at Tattoo Trace, Valencia3.

10. By letter dated, March 10, 2010, the Permanent Secretary, of the Ministry of Energy and

Energy Industries, informed West and Associates that the Government of Trinidad and

Tobago had approved the grant of an interim licence in the National Interest for a period

of two years. The interim licence was renewable for successive periods of five years.4

11. By letter dated August 11, 2010, the Permanent Secretary in the Ministry of Energy and

Energy Affairs informed West and Associates that the Ministry had drafted a licence in the

name of West and Associates for 20 Acres of land in Tattoo Trace Valencia. In this letter,

the Permanent Secretary in the Ministry of Energy and Energy Affairs, requested further

documents5.

12. By a letter, which was dated May 04, 2011, the Permanent Secretary, Ministry of Energy

and Energy Affairs, required Mr. West to submit the relevant bonds for the mining licence6.

Having submitted the bonds, the mining licence was signed and granted on May 13, 2011.

13. There was a delay of 9 months between the grant and signing of the Tattoo Trace Licence.

As a result, the quarry fell prey to unwanted miners. On June 21, 2011, upon conducting a

site visit, Mr. West noticed that there were no significant gravel deposits. This was contrary

3 The letter dated September 18, 2018, was annexed to the first affidavit of Brendon West and marked BW1 4 The letter dated March 01, 2010, was annexed to the first affidavit of the Claimant, filed on April 06, 2018 and marked “B.W.2” 5 The letter dated August 11, 2010, was annexed to the first affidavit of the Claimant, filed on April 06, 2018 as “B.W.3” 6 The letter dated May 4, 2011, was annexed to the first affidavit of the Claimant, filed on April 06, 2018 as “B.W.4”

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to the borehole data as provided by the Ministry’s guidelines which stated that 8,066.67

cubic yards were to be provided per year.

14. As a result, by letter dated October 20, 2011, Mr. West wrote to then Minister of Energy

and Energy Industries, requesting an urgent meeting. By email of even date, Mr. West

received a response from Ms. Erian Charles, who was the then Assistant of the Minister,

indicating that the Minister would be out of the jurisdiction, and that she would liaise with

him at his earliest convenience7.

15. The requested meeting never took place, and over the next twelve months, Mr. West

continued to explore the quantum of deposits and continued to face challenges with illegal

occupants.

16. In September 2012, Mr. West engaged the services of I. and G. Geosciences and Reservoir

Engineering Consultant Limited to conduct a Geological Reconnaissance Exercise. The

consultant visited the site and conducted open trench testing. A report was prepared by I.

and G. Geosciences and Reservoir Engineering Consultant Limited. The consultant’s report

showed that the core deposits had been fully exploited8.

17. Having received the report, Mr. West wrote to the Honourable Minister, Kevin Ramnarine,

Minister of Energy and Energy Affairs. By letter dated September 17, 2012, Mr. West

alluded to the depletion of aggregate at the lands situate at Tattoo Trace, and requested

7 See the affidavit of Brendon West filed on April 06, 2019 at exhibit “B.W.5” and exhibit “B.W.6” 8 See the affidavit of Brendon West filed on April 06, 2018, exhibit “B.W. 7”

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to be considered for a replacement parcel. No response was forthcoming9. Mr. West

renewed his request by way of his letter dated the November 18, 2013. 10

18. Some 16 months after his initial application, Mr. West received a letter dated January 17,

2014 from the Permanent Secretary in the Ministry of Energy and Energy Industries, inviting

him to submit a completed mining application with all supporting documents11. Mr. West

submitted the application on or around March 20, 2014.

19. On that very day, Mr. West wrote to the Minister, indicating that the dry gravel season was

in effect and seeing that there was a major shortage of aggregate for the use in commercial

construction, Mr. West, requested that the Minister consider him for a grant of land, situate

at Tractor Road, Mathura.

20. Months later, Mr. West still had not received a response. Between July, 14 and July 18,

2014, he dispatched a number of letters seeking meetings with the Minister, the

Conservator of Forest, Senior Inspector OSHA and the Director of Minerals12. Mr. West also

wrote to the Commissioner of State Lands.13

21. In the interim, the Minister of Energy and Energy affairs received many requests for mining

licences. It was the evidence of Monty Beharry, Director of Minerals, that between August,

2009 and January, 2014, the Minister received 54 letters of request for State Lands, for the

purpose of mining. The Minister advised interested persons, including the Claimant, to

9 See the affidavit of the Claimant filed on April 6, 2018, exhibit “B.W.8” 10 See the affidavit of the Claimant filed on April 6, 2018, exhibit “B.W.9” 11 See the affidavit of the Claimant filed on April 6, 2018 exhibit “B.W.10” 12 See affidavit of Brendon West April 6, 2018 BW12 13 See affidavit of Brendon West April 6, 2018 BW 13

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submit applications on a form entitled “Application Form for State Lands for Mining and

Quarry Purposes”. 14

22. Accordingly, in May 2015, Cabinet noted the high demand for aggregate, in the light of

proposed plans to increase housing and to construct a highway from San Fernando to Point

Fortin.

23. Cabinet requested the Commissioner of State Lands to make available, a parcel of State

Land in the Malejo forest reserve, Valencia. The designated parcel comprised 240 acres.

Cabinet agreed to the grant of mining licences to six companies, including West and

Associates, the Claimant Company.

24. On June 18, 2015, that the Permanent Secretary of the Ministry of Energy and Energy

Affairs informed Mr. West that he had been pre-approved for the grant of a mining licence

in the national interest, for a period of five years. The land measured 16.1878 hectares (40

acres) of State land, situate at Melajo Block E. The Permanent Secretary requested a list of

documentation including:

(i)Lease/Permit from Commissioner of State Lands

(ii) Eight originals of a Survey Plan approved by the Director of Surveys

(iii) Certificate of Incorporation

(iv) Organisational structure for mining operations

(v) BIR/PAYE file number15

14 See paragraph 6 of the Affidavit of Monty Beharry May 28, 2018. 15 See exhibit “B.W.14” of the affidavit sworn by Brendon West on April 06, 2018.

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25. Mr. Monty Beharry, on behalf of the Defendant, alleged that a meeting was held on June

30, 2015, between a sub-committee of the Minerals Advisory Committee (MAC) and the six

(6) awardees including the Claimant. Mr. Beharry claimed that, at this meeting, awardees

were informed of the provisions of Regulations 6(4) of the Minerals (General)

Regulations16 which came into effect on June 08, 2015. Mr. Beharry deposed that the

awardees were informed that by Regulation 6(4)17 their applications would be rendered

invalid should they fail to complete their applications within 90 days. Mr. Beharry annexed

an attendance sheet which recorded the presence of persons who attended the meeting.

He failed however to provide any minutes.

26. At paragraph 3 of his Reply Affidavit18, the Claimant denied that the awardees had been

alerted at the meeting of the 90 days deadline. An issue of fact arises therefore, as to

whether the Claimant was ever alerted to the 90 days deadline. This issue will be resolved

below.

27. The events, which followed, were essentially exchanges in correspondence between West

and Associates and the various government agencies with which Mr. West was required to

obtain clearance. These are set out in tabular form.

Date Relevant Correspondence Effect of Correspondence

June 29, 2015 From Mr. Vishal Persad, Quarry Management Officer, by email to the Mr. Brendon West Exhibited as “B.W.16”.

Reminded Mr. West of a meeting to be held with the Sub-Committee of the Minerals Advisory Committee to discuss the application process for obtaining a mining and/or processing licence.

16 The Minerals (General) Regulations, 2015 17 Ibid 18 See paragraph 3 of the Reply Affidavit of Brendon West filed on June 01, 2018

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June 30, 2015 Mr. West wrote to the Commissioner of State Lands. Exhibited as “B.W.17”

Requested urgent permission to access the parcel of land situate at Melajo Block E.

July 01, 2015 Email from Ms. Gellineau on behalf of the Minister, to Mr. West. Exhibited as “B.W.18”

Attached a list of contacts in the Minerals Division to liaise with in respect of the application. Attached mining plan form as well as mining design template.

July 02, 2015 E-mail from Ms. Krystal Amoroso on behalf of Mr. West, to Ms. Cherisse Gellineau for the Minister Exhibited as “B.W.19”

Mr. West forwarded a copy of a letter of Commissioner of State Lands to Ms. Gellineau.

July 08, 2015 E-mail from Ms. Cherisse Gellineau to Mr. West Exhibited as “B.W.20”.

Informed him that the following documentation had to also be submitted; in the earliest time: “ a. A letter to the Commissioner of State Lands requesting permission to access the site indicating how many test pits will be required to complete the mine design; b. Apply to relevant agency (MEEA, EMA, TCPD, WRA). Relevant applications forms with award letters attached. c. Advise in writing of your authorization to have a consultant deal with your application on your behalf d. scan and send email copies of relevant receipts from the various agencies”.

July 08, 2015 E-mail from Ms. Cherisse Gellineau to Mr. West Exhibited as “B.W.21”

Informed Mr. West of the coordinates for the block which was awarded to him.

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July 09, 2015 Mr. West wrote to the Commissioner of State Lands Exhibited as “B.W.22”

Followed up on letter June 30, 2015 and requested permission to make 35 boreholes during the survey, in order to facilitate the geologist, to compile and prepare the mine design plan

July 09, 2015 E-mail from Mr. West to Ms. Cherisse Gellineau Exhibited as “B.W.23”

Forwarded a copy of the above letter.

July 09, 2015 Letter from Commissioner of State Lands. Exhibited as “B.W.24”

Permission was granted to enter onto the lands at Block E Melajo to conduct test pits and/or bores.

July 22, 2015 E-mail from Ms. Krystal Amoroso on behalf of Mr. West, to Ms. Cherisse Gellineau and Ms. Dana Massiah, both of Ministry of Energy and Energy Industries Exhibited as “B.W.25”

Forwarding copies of the receipts from the Water Resources Agency and the Environmental Management Authority.

August 20, 2015 Mine Design Plan Exhibited as “B.W. 26”

Submitted by the Claimant to the Ministry’s Mineral Divisions

September 02, 2015

E-mail from Ms. Krystal Amoroso on behalf of Mr. West, to Ms. Cherisse Gellineau Exhibited as “B.W.27”

Sent copies of receipts for submission to Environmental Management Authority, as well as planning permission received from Town and Country Planning Division.

January 29, 2016 E-mail from Ms. Krystal Amoroso on behalf of Mr. West, to Ms. Cherisse Gellineau Exhibited as “B.W.29”

Forwarded a copy of Certificate of Environmental Clearance and stated the hard copy will follow. The CEC was dated January 25, 2016. (BW29)

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February 24, 2016

E-mail from Ms. Krystal Amoroso on behalf of Mr. West, to Ms. Cherisse Gellineau Exhibited as “B.W.30”

Sent the updated Mine Design Plan, together with Water Resources Agency Approval.

April 25, 2016 Letter from Mr. West to Ms. Nicole Oliverrie, Minister of Ministry of Energy and Energy Affairs Exhibited as “B.W.31”

Outlined the course of dealings he had over the years with the Ministry. This follow up was warranted, because the Claimant had sought financial assistance from financial institutions. Pointing out that 10 months had passed since pre-approval and the saga continues. (BW31)

June 10, 2016 Letter from the Town and Country Planning Division, to Mr. West Exhibited as “B.W.32”.

Informed Mr. West that: “certain matters have arisen as a result of which the processing of [your] application cannot be completed” Identified that his application had the following defects: i.WASA/Water Resources Agency Abstraction Permit ii.Deed/Lease agreement showing ownership or authorization if parcel is on state lands or subleased to private owners. iii.Consideration for long term after-use proposals for the site. (BW32)

May 05, 2017 Letter from Mr. West to Mr. Franklyn Khan, Minister of Ministry of Energy and Energy Affairs Exhibited as “B.W.33”

This letter sets out the history of the application of the Claimant. Mr. West indicated that his application could not move forward with Town and Country Planning Division, without approval from the Commissioner of State Lands. He also informed the Minister

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that pursuant to a meeting held with Paula Drakes, Commissioner of State Lands, she informed him that the legal department of the Ministry of Energy had to draft a licence, and not a lease for the land situate at Melajo.

28. On January, 9, 2018, the Permanent Secretary, Ministry of Energy and Energy Industries

wrote to the Claimant in order to relay the decision of the Government of Trinidad and

Tobago to rescind the pre-approval which he had been given two and a half years before.

The terms of the letter are set out below:

“Reference is made to the Ministry of Energy and Energy Industries (MEEI) letter

dated June 18, 2015 Re: Pre-Approval for the Grant of a Mining Licence in the

National Interest for Melajo Block E.

Please be advised that the Government of the Republic of Trinidad and Tobago has

rescinded the decision to grant a Mining Licence in the national interest for the

conduct of mining operations at Melajo Block E. In the circumstances, your

application for a Mining Licence cannot be processed by the MEEI…” 19

29. The Claimant subsequently learnt that the relevant Cabinet decision had been made on

November 9, 2017. He received this information in response to a request under the

Freedom of Information Act20.

19 See exhibit “B.W. 34” 20 Mr. West through his attorney applied for information under the Freedom of Information Act Ch22:02 on April 11, 2017.

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30. The Claimant provided evidence of his expenditure in anticipation of receiving the licence.

Having had pre-approval of the Mining Licence, Mr. West expended sums of monies, in

preparation for mining and in expectation that all would be well with his application. Mr.

West entered into agreements with ANSA Merchant Bank and HSL Suppliers Limited and

Laing Limited for the lease purchase agreements of the following equipment:

i. New machinery (2 excavators) valued at $6,000,000.00

ii. 2 Pioneer commercial water pumps valued at $625,000.00

iii. Electrical generator at $175,000.00

iv. Establishing of processing plant- $2,500,000.00

v. Purchase of additional property valued at $1,000,000.0021

51. After having received the pre-approval, the Claimant engaged the services GeoSim

Consulting, a firm of geoscientists to conduct a geological survey of Melajo Block E. GeoSim

found that Block E had great lucrative potential. By their report dated September 30, 2015,

Mr. McPherson, on behalf of the firm, stated

“ Geological Date confirms that Block E is potentially a highly lucrative venture.

Large volumes of high yielding shallow gravel deposits are concentrated toward

the eastern and north western flank of the block”22

52. Mr. West made further purchases including 1 Doosan DX500LCA excavator23. Mr. West

stated that he had firm agreements with companies such as Readymix (WI) Limited, Carl

21 See exhibit “B.W.36” , a copy of the agreement for sale of a hydraulic excavator from Hydraulic Supplies Ltd to the Claimant 22 See exhibit “B.W. 37” 23 See paragraph 49 of the affidavit of Brendon west filed on April 06, 2018

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Company Limited and Maraj Hill General Contractors Limited for the purchase of

aggregates and processed material. He averaged that he lost $15,366,089.10 per year, in

net profits.

53. On April 11, 2018, an advertisement appeared in Trinidad Express Newspaper, “Invitation

to Bid for Mining and/or Processing Licences for Mining Blocks A, B, C, D, E and F in the

Melajo Forest Reserve (Sand and Gravel), Matura”24. The bid outlined the total area of

each block and identified each block in the respective amounts of 40 acres. Mr. West

became concerned, as that invitation allowed persons to bid for the same parcel of land,

Block E, for which he had instituted these proceedings.

54. Mr. Monty Beharry, testifying on behalf of the defendant stated that Mr. West’s application

expired on November 18, 201525. Mr. Monty Beharry testified that he was unaware that

Mr. West continued to send documents to the Ministry after November 18, 2015.

55. By November 18, 2015, Mr. West had the following outstanding documents:

a. Lease from the Commissioner of State Lands;

b. Certificate of Environmental Clearance

c. Town and Country Planning Approval

d. Water Abstraction Licence from the Water Resources Authority

24 Exhibited as “B.W.49” to the Second Affidavit of Brendon West filed on 25 See paragraph 15 of the affidavit of Monty Beharry filed on May 28, 2018

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e. Outstanding royalties in respect of the parcel of State Lands operated by

the Claimant at Block 3, Tattoo Trace

f. Eight original copies of a survey plan approved by the Director of

Surveys.26

56. Mr. Beharry deposed that the Ministry was not responsible for the preparation or execution

of any documents relating to the granting of permissions to use state lands for the purpose

of mining related activities27. According to Mr. Beharry, such permission lies within the

purview of the Commissioner of State Lands. He relied on Section 8(2) of the Minerals Act28

provides that written consent is required of the Commissioner of State Lands before a

mining licence can be issued.

57. I considered the evidence of Mr. Beharry which purported to contradict the evidence of

the applicant, as contained at paragraph 44 of the April 06, 2018 affidavit. It is to be noted

that Mr. Beharry did not deny that Ms. Drakes, Commissioner of State Lands, told the

applicant that licences were prepared by the Ministry. Mr. Beharry also made a broad

general assertion as to the preparation and execution of documents in relation to the grant

of permission to use state lands. However, this witness diligently avoided addressing the

preparation of the specific document, which was the mining licence. It was my view that

Mr. Beharry did not adequately contradict the Claimant’s evidence and I accepted as matter

26 See paragraph 13 of the Affidavit of Monty Beharry filed on May 28, 2018 27 See paragraph 16 of the affidavit of Monty Beharry filed on May 28, 2018 28 Ch 61:03

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of fact that the Claimant was told by Ms. Drakes that licences were prepared in the legal

department of the Ministry of Energy and Energy Affairs.

Law

The Minerals Act

58. The Minerals Act Chap 61:03 confers on the Minister of Energy responsibility for several

tasks. One the these, as specified at section 8 (1) (b) invests in the Minister of Energy

responsibility for:

“….granting, reviewing, revoking or suspending licenses for

mining, processing, imports and export of minerals.”

59. Section 15 (1) of the Act establishes the Minerals Advisory Committee (“the Committee”).

The Committee was established for the specific purpose of advising the Minister on:

“….all matters relating to the exploration of mining,

processing import or export of minerals.”

60. Section 15 (2) of the Act provides for the membership of the Committee. The list includes

13 members representing various departments of government. Significantly the list

includes, the Director of Minerals, the Commissioner of State lands, and a representative

of the Town and County Planning Department.

61. Section 16 of the Act sets out the duties of the Committee. At 16 (b), the Committee is

charged with the duty to

“….receive and consider applications for licences and to make

recommendation thereof to the Minister…”

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62. Section 17(1) of the Act provides for the grant of licences for mining upon a competitive

bidding process. The Minister is empowered to depart from the competitive bidding

process by section 17(2), where he acts on the advice of the Committee, in the national

interest and with the approval of Cabinet.

63. By Regulation 3 of Minerals (General) Regulations29, the Minister is empowered to issue a

mining licence. Applications for licences are to be made in the appropriate form and

submitted to the Committee.

64. Central to these proceedings are the provisions of Regulations 6 (4) which provides:

“If the applicant fails to meet the requirement for the grant of licence

within Ninety (90) days of submission of the application, the application

shall be deemed invalid.”30

Issues

65. Three issues arose for the Court’s consideration:

(i) Whether the decision of the Defendant to rescind the decision to

grant a licence to the Claimant was illegal

(ii) Whether the decision was irrational

(iii) Whether the decision was procedurally improper

29 The Minerals (General) Regulations were published in the Gazette on June 08, 2015 30 Ibid

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Additionally, I considered whether the Claimant would be entitled to an award of damages,

if successful in the substantive application for judicial review.

Discussion

66. In this application for judicial review, the Claimant impugns the decision of the Minister of

Energy to advise Cabinet to rescind a mining licence, which had been granted to him in June

18, 2015.

67. There was no dispute that the Claimant’s company, West and Associates had been awarded

a mining licence in September, 2009. The entire process for the grant of the licence took

several years and in June, 2011, Mr. West discovered that the portion of land, which had

been allotted to him, had fallen prey to illegal quarrying. The Claimant requested an

alternative site.

68. The Claimant again waited for many years until June 18, 2015, when he was informed that

together with five other awardees he had been pre-approved for the grant of a mining

licence in respect of parcel of land at Melajo Block E.

69. In the very letter of June 18, 2015, the Permanent Secretary, Ministry of Energy and Energy

Industries provided a list of conditions which West and Associates was required to satisfy

in order to obtain the licence.

70. It was accepted that a sub-committee of the Minerals Advisory Committee met with the

awardees on June 30, 2015. Mr. Beharry for the Defendant asserted that the awardees

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were alerted to the provisions of Regulations 6(4) of the Minerals (General) Regulations31

which had been published mere days before the meeting. The Claimant denied that the

awardees were so alerted.

71. In deciding this issue of fact, I examined the evidence of the deponent Monty Beharry and

found that he had made a bald assertion that the awardees had been alerted as to the (90)

day deadline. No minutes were provided and there were no supporting documents such as

aide-memoire or follow up letters. Mr. West denied that the awardees had been notified

of the 90 day deadline. As such, the Defendant, as the party who made the allegation that

the awardees were notified of the 90 day deadline, carried the burden of proof. It was my

view that the Defendant failed to take steps to discharge this burden by producing

documentary records or by calling Mr. West for cross examination. In so far as it was

relevant, I found, as a matter of fact, that the awardees had not been alerted as to the

provisions of Regulation 6(4), which had been published after the letter of pre-approval.

72. The evidence suggests that West and Associates proceeded diligently to satisfy the

conditions, had been listed in the letter of June 18, 2015.

73. The months passed. Ninety (90) days from the June 18, 2015 being September 18, 2015,

passed without comment from anyone. The Claimant did not relax his efforts at fulfilling

the conditions.

31 The Minerals (General) Regulations, 2015

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74. On the June 10, 2016, almost one year after having received the letter of pre-approval, the

Claimant received a letter from the Town and Country Planning Division, indicating that the

application for Town and Country planning approval could not move forward. The TCPA

identified three defects:

1) WASA/Water Resources Agency Abstraction Permit

2) Deed/Lease Agreement showing ownership or authorization if parcel

is on State land or sub-leased from private owners.

3) Consideration for long term after use proposals.32

75. I accept the evidence of the Claimant that the items at (1) and (3) above had been supplied.

In respect of the item (2), the Claimant was informed that the application to the TCPD could

not move forward without the approval of the Commissioner of State Lands.

76. Mr. West met with Ms. Paula Drakes, Commissioner of State Lands. It was his evidence,

that Ms. Drakes, indicated to him that the drafting of the licence fell to the legal department

of the Ministry of Energy and Energy Affairs.

77. The Claimant wrote to the Minister by letter dated May 5, 2017. He pleaded with the

Minister, pointing out that 23 months had passed and that even with the pre-approval

letter “the saga continues”33.

32 See the letter dated June 10, 2016 from the Ministry of Planning and Development to West and Associates exhibited as “B.W.32” 33 See the letter dated May 05, 2017 from West and Associated to the Minister of Energy and Energy Affairs exhibited as “B.W.33”.

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78. Silence followed in the ensuing months. By letter dated the January 9, 2018 the Claimant

was informed of Government’s decision to rescind the decision to grant the mining licence.

79. The letter of January 9, 2018 followed a Cabinet decision of November, 2017. It is significant

that the letter of January, 2018 makes absolutely no reference to regulations 6(4) or to a

90 day deadline.

80. In the interim, an application had been made by a third party, Bestcrete, on June 30, 201634

in respect of the lands close to those pre-approved for West and Associates. Bestcrete

received the grant of its licence on April 10, 201735, 10 months after the date of its

application, notwithstanding Regulation 6(4).

Illegality

81. I proceeded therefore to consider whether the impugned decision could be flawed on any

of the grounds relied upon by the Claimant.

82. By their Written Submissions of Learned Counsel, for the Claimant argued that the decision

of the Defendant was flawed on the ground of illegality. On behalf of the Claimant, Learned

Counsel argued that the Commissioner of State Lands and Town and Country Planning

Division could not grant permission for the use of State Lands without the Defendant as

regulator saying that it intended to grant a licence to the Claimant. Learned Counsel made

this submission:

34 See affidavit of Brendon West filed on October 23, 2018, exhibit “B.W.61” which was a List of Applications for mining licences for the period 2010-2018 in response to the Claimant’s request for access to official documents pursuant to the Freedom of Information Act 1999 35 Ibid

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“where a decision-maker is aware or should have aware of steps which it ought to

take to fulfill a condition to an applicant and fails to do so, this is an illegality.”

83. Learned Counsel also relied on the Canadian authority of Roncarelli v Duplessis36, in which

the plaintiff, as the holder of a liquor licence instituted proceedings against Minister

Maurice Duplessis for the arbitrary cancellation of his liquor licence. The cancellation was

motivated by a desire to punish the plaintiff for his association with and assistance to

Jehovah’s Witnesses.

84. By a majority, the Supreme Court of Canada found in favour of the plaintiff. Kerwin CJ held

that the Defendant had not been acting in the exercise of his official powers and that there

was no authority in the relevant statutes, enabling the defendant to direct the cancellation

of the permit. Kerwin CJ observed as well that the intent and purpose of the Act placed

complete control over the liquor traffic in the hands of an independent commission.

85. Learned Counsel extracted and relied on these words, purportedly from the case of

Roncarelli v Duplessis37:

“In public regulation of this sort there is no such thing as absolute and

untrammeled discretion, that is that an action be taken on any ground or for any

reason that can be suggested to the mind of the administrator; no legislative Act

can, without express language be taken to complete an unlimited arbitrary power,

36 [1959] 16 DLR (2d) 689 37 [1959] 16 DLR (2d) 689

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exercisable for any purpose, however capricious or irrelevant regardless of the

nature or purpose of the statute….”

86. It was my view that both the quotation and the authority were irrelevant to these

proceedings and to the ground of illegality. The quotation concerned the ground of

arbitrariness and the arbitrary use of power and does not assist the Claimant in respect of

the ground of illegality.

87. It was also my view that the instant proceedings were eminently distinguishable from

Roncarelli v. Duplessis38 where it was accepted that the licence had been cancelled to

punish the plaintiff for his association with Jehovah’s Witnesses. There is no comparable

common ground in these proceedings, the reason for the rescinding of the licence was

purely a matter of conjecture.

88. In any event, Roncarelli v Duplessis39 would be more relevant to the ground of bad faith

and not to the ground of illegality

89. The ground of illegality was defined by Lord Diplock in Council of Civil Service Unions v

Minister for the Civil Service [1985] A.C. 374 in this way:

“By illegality as ground for judicial review I mean that the decision-

maker must understand correctly the law that regulates his

decision-making power and must give effect to it.”40

38 [1959] 16 DLR (2d) 689 39 [1959] 16 DLR (2d) 689 40 [1985] A.C. 374 at page 410

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By section 8 (1) (b) of the Minerals Act41, the Minister was empowered to grant the

licence. That section also confers upon him the power and responsibility to suspend and

to revoke licences. The Minister was clearly invested with power to revoke or to rescind

the pre-approval, which had been granted by the Defendant and accordingly, it was my

view that the decision cannot be flawed on the ground of illegality.

Irrationality

90. I proceeded to consider the ground of irrationality or unreasonableness. Any consideration

of this ground should always begin by reference to Associated Provincial Picture Houses Ltd.

v. Wednesbury Corporation42 where Lord Greene MR said:

“ A person entrusted with a discretion must direct himself properly in law. He must

call his own attention to the matters which he is bound to consider. He must

exclude from his consideration matters which are irrelevant to the matter that he

has to consider. If he does not obey those rules, he may truly be said and often is

said to be acting “unreasonably”.43

91. At page 233 and 234, Lord Greene continued in this way:

“ The Court is entitled to investigate the action of the local authority with a view

to seeing whether they have taken into account, or conversely have refused to take

into account or neglected to take into account, matters which they ought to take

into account. Once that question is answered in favour of the local authority, it

41 Minerals Act Ch 61:03 42 [1948] 1 KB 223 43 Quoted by Justice Moosai JA Paul Lai v. A.G. Civil Appeal No. 129 of 2012 at paragraph 105

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may still be possible to say that although the local authority have kept within the

four corners of the matters which they ought to consider, they nevertheless have

come to a conclusion so unreasonable that no reasonable authority could ever

have come to it. In such a case, again, I think the Court can interfere”44

92. The Wednesbury test was considered and applied by Lord Diplock in CCSU v. Minister for

the Civil Service45. Lord Diplock defined irrationality in this way:

“By "irrationality" I mean what can by now be succinctly referred to as

"Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd.

v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so

outrageous in its defiance of logic or of accepted moral standards that no sensible

person who had applied his mind to the question to be decided could have arrived

at it.”46

93. Over the years, Courts have found irrationality in decisions which did not “add up”, where

there was also an error of reasoning which robbed the decision of logic47. A decision would

also be deemed to be irrational, where no sensible person who had applied his mind to the

question to be decided could have arrived at the decision.48

44 Quoted by Justice Moosai in JA Paul Lai v. A.G. Civil Appeal No. 129 of 2012 at paragraph 105 45 CCSU v. Minister for the Civil Service [1985] A.C. 374 at page 410 46 CCSU v. Minister for the Civil Service [1984] 3 All ER 935 47 See Fordham’s Judicial Review Handbook (6th Edition) paragraph 57.3 48 Ibid

https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?linkInfo=F%23GB%23KB%23sel1%251948%25vol%251%25year%251948%25page%25223%25sel2%251%25&A=0.7835883980126216&backKey=20_T29060370437&service=citation&ersKey=23_T29060369672&langcountry=GB

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94. A litigant, who relies on the ground of irrationality must surmount a threshold, which is

notoriously high. The decision must be perverse or such that the decision-maker took leave

of his senses49.

95. More recently, de la Bastide, Chief Justice, as he then was considered the ambit of the

ground of irrationality in D.S Maharaj Furniture and Appliances Ltd v. Comptroller of

Customs Civ App No. 6 of 1995. In the course of his judgment, de la Bastide, Chief Justice

asked rhetorically:

“Can a decision be quashed in judicial review proceedings on the

ground that it was unreasonable to make it without first pursuing

an obvious line of inquiry that was capable of producing relevant

information”50

Relying on the authority of Lord Diplock in CCSU51, de la Bastide CJ expanded the

boundaries of irrationality in this way:

“It strikes me as a legitimate extension of Wednesbury

unreasonableness to strike down a decision on the ground that no

reasonable person would have taken it without making some

further enquiry” 52

49 See Felix James v. Attorney General CV 513 of 2008 at page 13 of 18, cited and relied on by Learned attorneys-at-law for the Defendant. 50 D.S Maharaj Furniture and Appliances Ltd v. Comptroller of Customs Civ App No. 6 of 1995 at page 16 of the judgment 51 CCSU v. Minister for the Civil Service [1985] A.C. 374 52 D.S Maharaj Furniture and Appliances Ltd v. Comptroller of Customs Civ App No. 6 of 1995 at page 17 of the judgment

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96. I proceeded to examine the facts of this claim in the light of the foregoing authorities on

irrationality. It was noted at the outset that no reason was offered in the letter of the

January 9, 2018. I examined closely the language of the letter, which states:

“Please be advised that the Government of the Republic of

Trinidad and Tobago has rescinded the decision to grant a

mining licence in the national interest.”53

97. In my view, it was clear that the words “in the national interest” which appear in the letter

of June 09, 2018, refer to the original grant as stated in the letter of the June 18, 2015. In

that letter the Permanent Secretary in the Ministry of Energy wrote:

“Please note that you have been pre-approved for the grant of a Mining

Licence in the national interest….”54

Accordingly, it was the decision to grant the licence and not the decision to rescind which

was made in the national interest. This decision, at least as far disclosed in the letter of

January 9, 2018, was unsupported of any reason.

98. Assuming that I was correct in my assessment of the letter, it was my view that it would

have been outrageous in its defiance of logic and of accepted moral standards to suffer an

applicant to endure protracted and expensive preparations for the grant of a licence and,

at the end of a period of diligent efforts to satisfy conditions, and of enduring deafening

53 See the letter dated January 08, 2018 from the Ministry of Energy and Energy Affairs to Mr. Brendon West exhibited as “B.W. 14” 54 See the letter dated June 18, 2015 exhibited as B.W.14 of the affidavit of Brendon West filed on April 6, 2018.

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silence on the part of the defendant, simply to inform the Applicant that Government

decided to rescind the decision.

99. Belatedly however, the Defendant provided an explanation. When proceedings were filed

the Defendant provided an explanation through Mr. Monty Beharry, who stated that the

application had become invalid by the operation Regulation 6(4) of the Mining

Regulations55.

100. It was my view, having regard to the entire claim, that the allusion to Regulation 6(4) was

an ex post facto excuse. I found it inherently improbable that the Permanent Secretary,

Minister of Energy and Energy Industries, would have omitted to state, in his letter of

January 09, 2018, that the rescission was on the basis of Regulation 6(4). It was reasonable

to expect that a functionary of such seniority would specify that the application became

invalid because it had exceeded the 90 day deadline.

101. I also found it improbable that the Minerals Advisory Committee would wait for more than

2 years, before giving effect to a 90 day deadline.

102. It was therefore my view that it was highly unlikely that Regulation 6(4) was the reason for

the rescission of Government’s decision. Assuming that I am wrong however, I proceeded

to consider whether a decision based on Regulation 6(4) would be flawed for irrationality.

I asked myself whether it was so unreasonable that no reasonable decision-maker would

have arrived at the conclusion adopted by the Minister.

55 The Minerals (General) Regulations, 2015

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103. In asking the question, which I have formulated at supra, I took into account the fact that

the Claimant was not able to satisfy conditions in respect of the TCPD56 and COSL57, because

he was awaiting a draft licence from the Defendant’s office.

104. It was my view that the Defendant must have been aware that the licence had not be

prepared, because the legal department of the Ministry was and continues to be under the

control of the Minister. Moreover, it was not in dispute that the Minerals Advisory

Committee held meetings to discuss the applications. The Director of Minerals would have

heard from the COSL as well as the TCPD.

105. In my view, it was wholly unrealistic and fanciful to retreat into a legalistic fiction and to

deny that there was a synergy between the various actors on the MAC58. The Act59 itself

required the collaboration of the membership of the MAC for the purpose of advising the

Minister60. It was therefore my view that the action of the Minister, in giving effect to the

90 day deadline, when the cause of the delay was a failure of his own legal department to

draft the requisite document, amounted not only to administrative callousness, but was

also irrational in the Wednesbury sense.

106. The Claimant expended himself to discover the reason by filing a FOIA application. He was

told of the date of the Cabinet minute. All other information was privileged and protected.

107. The Claimant was nonetheless aware that a licence had been awarded to Bescrete

Aggregate Ltd, who having applied on June 30, 2016 received the grant of the licence some

56 Town and Country Planning Division 57 Commissioner of State Lands 58 Minerals Advisory Committee 59 Minerals Act Ch 61:03 60 Ibid at section 15

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11 months later in April, 2017. The ninety (90) day deadline had not been imposed on

Bestcrete. This has not been denied by the Defendant.

108. The unevenness of the hand of the Defendant exacerbated the irrationality. It failed to add

up that the 90 deadline could be lifted for one entity and not another. This, in my view,

served to intensify the defiance of logic and more particularly of accepted moral standards.

109. Accordingly, it was my view and I held that the decision, as communicated in the letter of

the January 9, 2018 was flawed on the ground of irrationality.

Procedural Impropriety

110. I proceeded to consider the ground of procedural impropriety. The formulation of the Lord

Mustill in Ex parte Doody [1994] AC 531 has become the accepted definition of fairness:

‘ (1) where an Act of Parliament confers an administrative power

there is a presumption that it will be exercised in a manner which is

fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change

with the passage of time, both in the general and in their

application to decisions of a particular type. (3) The principles of

fairness are not to be applied by rote identically in every situation.

What fairness demands is dependent on the context of the decision,

and this is to be taken into account in all its aspects.

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(4) An essential feature of the context is the statute which creates

the discretion, as regards both its language and the shape of the

legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be

adversely affected by the decision will have an opportunity to make

representations on his own behalf either before the decision is

taken with a view to producing a favourable result; or after it is

taken, with a view to procuring its modification; or both

(6) Since the person affected usually cannot make worthwhile

representations without knowing what factors may weigh against

his interests fairness will very often require that he is informed of

the gist of the case which he has to answer.”61

It was my view that fairness dictated that prior to making a decision adverse to the Claimant

he ought to have been given an opportunity to be heard.

111. The 6th factor identified by Lord Mustill referred to the requirement that the party affected

be informed of the case which he had to answer. In the context of these proceedings

fairness would have required that the Claimant be informed of the reason for the rescission

of the grant of the licence. This would have enabled the Claimant to make representations

or at least to make adjustments to his expenditure with a view to minimizing the financial

loss which he suffered. It was therefore my view and I held that the Claimant was entitled

61 [1993] 3 WLR 154 at 168

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to an opportunity to be heard before the grant was rescinded. There will be judgment for

the Claimant, on the ground of procedure impropriety.

Legitimate Expectation

112. In asserting that the Claimant held a legitimate expectation, learned attorneys-at-law relied

on the authority of authority of McInnes v Onslow Fane62 where the plaintiff had applied

for a declaration that he had suffered a breach of natural justice when the British Boxing

Board of Control refused his application for a boxing manger’s licence. Megarry V.C.

considered the authority of Nagle v. Fielden63, and while avoiding a suggestion that the

categories were exhaustive, the judge identified three categories of cases:

“First, there are what may be called the forfeiture cases. In these, there is a

decision which takes away some existing right or position, as where a member of

an organisation is expelled or a licence is revoked. Second, at the other extreme

there are what may be called the application cases. These are cases where the

decision merely refuses to grant the applicant the right or position that he seeks,

such as membership of the organisation, or a licence to do certain acts. Third,

there is an intermediate category, which may be called the expectation cases,

which differ from the application cases only in that the applicant has some

legitimate expectation from what has already happened that his application will

be granted. This head includes cases where an existing licence-holder applies for

a renewal of his licence, or a person already elected or appointed to some position

62 [1978] 3 All ER, 1520 63 [1966] 2 OB 633

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seeks confirmation from some confirming authority: see, for instance,

Weinberger v Inglis; Breen v Amalgamated Engineering Union; and see Schmidt

v Secretary of State for Home Affairs ([1969] 1 All ER 904 at 909, 911, [1969] 2 Ch

149 at 170, 173); R v Barnsley Metropolitan Borough Council, ex parte Hook64.

Megarry V.C. continued at page 218d, of the report:

“It seems plain that there is a substantial distinction between the forfeiture cases

and the application cases. In the forfeiture cases, there is a threat to take

something away for some reason; and in such cases, the right to an unbiased

tribunal, the right to notice of the charges and the right to be heard in answer to

the charges (which, in Ridge v Baldwin), Lord Hodson said were three features of

natural justice which stood out) are plainly apt. In the application cases, on the

other hand, nothing is being taken away, and in all normal circumstances there

are no charges, and so no requirement of an opportunity of being heard in answer

to the charges. Instead, there is the far wider and less defined question of the

general suitability of the applicant for membership or a licence. The distinction is

well-recognised, for in general it is clear that the courts will require natural justice

to be observed for expulsion from a social club, but not on an application for

admission to it. The intermediate category, that of the expectation cases, may at

least in some respects be regarded as being more akin to the forfeiture cases than

the application cases; for although in form there is no forfeiture but merely an

64 See [1998] 3 All ER 211 at paragraph 217 h

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attempt at acquisition that fails, the legitimate expectation of a renewal of the

licence or confirmation of the membership is one which raises the question of

what it is that has happened to make the applicant unsuitable for the

membership or licence for which he was previously thought suitable.65”

113. In the answer to the Claimant’s submissions, learned attorneys-at-law for the Defendant

relied on the statement of their Lordships in United Policy Holders Group v. Attorney

General of Trinidad and Tobago [2016] UKPC 17 (UPH v. A.G.) where Lord Neuberger

defined a legitimate expectation in this way:

“In the broadest of terms, the principle of legitimate expectation is based on the

proposition that, where a public body states that it will do (or not do) something, a

person who has reasonably relied on the statement should, in the absence of good

reasons, be entitled to rely on the statement and enforce it through the courts. Some

points are plain. First, in order to found a claim based on the principle, it is clear that

the statement in question must be “clear, unambiguous and devoid of relevant

qualification”, according to Bingham LJ in R v Inland Revenue Comrs, Ex p MFK

Underwriting Agents Ltd, cited with approval by Lord Hoffmann in R (Bancoult) v

Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, para

60.66”

65 [1998] 3 All ER 211 at 218 66 United Policy Holders Group v. Attorney General of Trinidad and Tobago [2016] UKPC 17 at paragraph 37

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McInnes v. Onslow Fane or UPH v. A.G.

114. It became necessary to decide whether this claim was governed by McInnes v Onslow

Fane67, that is to say whether the rescission of the pre-approval fell within the third

category of expectation, cases, as identified by Megarry V.C. It was my view that the

rescission in this case raised the question of what it is that happened to make the applicant

unsuitable for the grant of licence for which he had been previously been thought suitable.

68

115. Having so decided, that the facts of this Claim were within the expectation category as

identified by Megarry V.C., it became necessary to decide whether such a finding implied

that the Claimant had conceived a legitimate expectation as a ground in judicial review.

116. In order to establish such a legitimate expectation, the Claimant would have been required

to point to a clear and unambiguous statement devoid of any qualification. Mr. West, as

with persons in the intermediate Megarry category, would not have relied on a clear and

unambiguous statement, but an implied expectation that having been successful at the

outset, they would not be deemed unsuitable and that if they were, they held the right to

be informed of the factors which led to such unsuitability.

117. In so far as the Claimant here could not and did not allege that he had been the recipient

of a promise, by way of a clear and unambiguous statement, it was my view that the

Claimant was unsuccessful in establishing that he had conceived a legitimate and I refused

to make a declaration in those terms.

67 [1978] 3 All ER 211 68 See McInnes v Onslow Fane [1978] 3 All ER 211

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118. By the definition, as prescribed by their Lordships in UPH v. A.G.69 a person who alleges the

existence of a legitimate expectation must point to a statement that is “clear, unambiguous

and devoid of relevant qualification”

119. In these proceedings, there was no statement which was clear, unambiguous and devoid

of qualification. On the contrary, the Claimant received the grant of pre-approval subject

to conditions. When these proceedings were considered in the light of the definition of

their Lordships, the Claimant could not be considered as having held a legitimate

expectation. I therefore refused to grant a declaration in terms of a legitimate expectation.

The Claimant’s Entitlement to Reasons

120. The Claimant, through Counsel, argued that he was entitled to the reasons which led to the

rescission of the licence which he had been granted.

121. In resisting this argument, learned attorneys-at-law for the Defendant cited and relied on

the decision the Court of Appeal, In the Application of Kenneth Lalla, Henley Wooding,

Cipriani Baptiste and Others v. Dougnath Rajkumar Civil Appeal No. 128 of 1999. In that

case, the Respondent, Dougnath Rajkumar challenged the decision of the Public Service

Commission to by-pass him for promotion. The Judge at first instance both promoted the

Respondent and directed that he be given reasons. In respect of the right to reasons,

Sharma JA had this to say:

“ If a tribunal is properly entertaining an application before it there is no general

principle that reasons should be given for its decision. In some cases, however, the

69 United Policy Holders Group v. Attorney General of Trinidad and Tobago [2016] UKPC 17

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relevant legislation may so provide and then the Tribunal would be obliged to do

so. In some cases, the Courts may insist and order that reasons be given even

though the particular legislation does not say so….

In the instant case, the failure of the Commission to give reasons does not

constitute a denial of natural justice.70”

122. In these proceedings, the decision-making power of the Minister was governed by the

Minerals Act71. Section 20(1) of the Act requires the Minister to provide written reasons,

where the Minister refuses to issue a mining licence. Section 20(2) made this provision:

“Where the Minister refuses to issue a licence he shall give the applicant reasons

for the refusal in writing…”

123. It was the contention of learned attorneys-at-law for the Defendant, that section 20(2) did

not place an obligation on the Minister, in these proceedings to provide reasons. It was

their contention that what took place, in this Claim, was not a refusal to grant a licence but

a rescission of the decision to grant the licence.

124. It was my view that the argument of learned attorneys-at-law for the Defendant made an

artificial distinction between refusal and rescission of a grant. It was my view that rescission

of an original decision to grant had the same, if not a more deleterious, effect than a refusal.

125. This view was supported by the provisions of section 19 of the Act. The Minister has power

to either grant or refuse an application for a licence. Accordingly, section 19(1) provides:

70 In the Application of Kenneth Lalla, Henley Wooding, Cipriani Baptiste and Others v. Dougnath Rajkumar Civil Appeal No. 128 of 1999 at page 2 of the judgment 71 Minerals Act Ch 61:03

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“On receipt of an application for…mining… the Committee shall make a

recommendation to the Minister…and the Minister may either grant or refuse the

licence”

126. Only two options are afforded to the Minister: to refuse or to grant. The rescission of a

provisional licence is more akin to a refusal than to a grant. It was my view that for the

purpose of section 20(2), a rescission must be treated as a refusal.

Damages

127. I proceeded to consider the issue of damages. Section 8(4) of the Judicial Review Act

provides for the award of damages in the following way:

“(4) On an application for judicial review, the Court may award damages

to the applicant if—

(a) the applicant has included in the application a claim for damages

arising from any matter to which the application relates; and

(b) the Court is satisfied that, if the claim has been made in an action begun

by the applicant at the time of making the application, the applicant could

have been awarded damages.”72

128. The Claimant in these proceedings included a claim for damages both in his application for

leave dated April 6, 2018 and in this application for judicial review, by way of a Fixed Date

Claim Form filed on April 24, 2018. He therefore met the condition stipulated at section 8

(4)(a) of the Judicial Review Act73

72 See Judicial Review Act 7:08, section 8(4) 73 Ch 7:02

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129. I considered whether this Claimant met the condition set out at Section 8 (4) (b). It was my

view that had the Claimant instituted proceedings on April 24, 2018 under section 14 of the

Constitution74 in respect of the right to equality of treatment by a public authority he could

have recovered compensation under the Constitution75. By April, 24, 2018, the date of the

Claimant’s application for judicial review, the third party, Bestcrete Aggregate Ltd. though

exceeding the 90 day limit, still received a licence in the very locality denied to the Claimant.

I was satisfied that the Claimant, in these proceedings could have been awarded damages

had he filed a constitutional motion.

130. It was my view that the Claimant was entitled to judgment in terms of the orders set out

below.

Orders

1. A declaration that the decision dated 9th January, 2018 to rescind the decision to grant to

the Intended Claimant a mining licence in the national interest for certain state lands

situate at Melajo Block E (“the said decision”) is illegal, irrational, procedurally improper,

null and void and of no effect;

2. An order of certiorari to bring into this Honourable Court and quash the said decision;

3. Consequent upon the said order of certiorari, an order that the Honourable Minister of

Energy and Energy Industries do forthwith re-consider afresh the application of the

Intended Claimant dated 20 March 2014 for the grant of a mining licence.

74 Ch 1:01 75 See section 4(d) of the Constitution Ch 1:01 which enshrines the right to equality of treatment by a public authority.

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6. A declaration that the failure and/or omission of the Honourable Minister of Energy and

Energy Industries to do all such things and take all such steps as are necessary so as to

ensure the proceeding of the Intended Claimant’s mining licence is illegal, irrational,

procedurally improper, null, void and of no effect; and

7. An order of mandamus directing the Honourable Minister of Energy and Energy Industries

to take all such steps as are necessary to grant the Intended Claimant a mining license in

the national interest for a period of five (5) years with respect to a 16.1878 hectare (40

acre) parcel of State Land at Melajo Block E.

8. The Defendant do pay to the Claimant damages and costs to be quantified by a Master in

Chambers.

Date of Delivery: July 31, 2019

Justice Dean-Armorer

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