Ann: Voluntary Suspension, page-24

Heres one that I already posted, which states there are more to follow and there is another article that I posted previously that I cant find right now...

Former Mines Ministermisused powers

Courts say formerMinister acted beyond powers in cancelling licence without Minerals Board’sdecision and advice

By Gary Hatigeva

The High Court ofSolomon Islands on April 5, 2019 handed down its judgment in cc N0. 224/2018deciding that the former Minister of Mines Minister and re-elected Member ofParliament for East Guadalcanal, Bradley Tovosia, misused his powers when hecancelled the Prospecting Licence of an Australian Mining Company, in Nende,Temotu province.

In a court judgementsighted by this paper, it revealed that the Claimant, East South Investment PTYLimited (ESIPL) in the case alleged that the Minister’s decision is in breachof the Mines and Minerals Act (Cap 42), Regulations and Licence.

The claimant hadsought quashing orders against the Minister’s decision to cancel itsProspecting Licence No.01/2016, which according to it statement of claim, theformer Minister’s move to cancel their licence was outside of his powers, andthat the Mines and Minerals Board had never decided upon, or given any advicefor him (minister) to cancel the company’s prospecting licence over tenementsin West Nende, Temotu province.

The statutory powerquestioned in the court proceedings is contained in section 71(1) and (2) ofthe Mines and minerals Act (cap 40).

This section statesthat the minister can only suspend or cancel a licence upon the advice of theboard. Furthermore, before doing so subsection 2 states that the Minister mustbefore exercising the power under subsection (1), produce a show cause notice tothe concerned company and only if not satisfied, suspend or cancel the licence.

Making his judgementstatement on the matter, Judge John Keniapasia explained that Section 71 (1)and (2) of the Act, are very clear, simple and does not require a magician tointerpret. I read Section 71 (1) and (2) of the Act many times.

“And the conclusions Ireach in interpretation remain substantially the same. The same substantiveconclusion is that the Minister could only cancel a license based on advicefrom the Board. I had some Board experience before becoming a judge. A Board wouldhave issues for discussion before it.

In assessing theevidence at Paragraph 10 his lordship said, it appears from the minutes andadopted in Agreed fact that the March 9, 2018 meeting did not decide to cancelthe licence but only to issue cause of notice to exert pressure on claimant andto assess the situation from the claimant’s responses by the show causeprocess, and the show cause notice will be issued subject to Attorney General’sadvice.

His lordships judgmentthen goes on to say, “I read the Minutes many times and the conclusion remainssubstantially the same. The same substantive conclusion is the “Board did notdecide to cancel ESIPL licence”.

“Myunderstanding of Board functions and best Board governance practices is thatthe Board deferred a decision to cancel claimant’s licence pending furtherinformation (to come from the Minister’s show cause process),” the High Courtjudge added.

The evidence furtherconfirmed that the Board did not reconvene at a later date to assess and theBoard did not separately advised the Minister to issue the show cause notice,and it is not surprising therefore that the minister acted outside of theBoard’s intention in issuing the show cause notice.

The evidence alsoshowed that the “Purpose was for the Board to exert pressure, obtain furtherinformation, assess properly the claimant’s situation and reconvene to decide,whether or not to cancel its licence.

In his lordship’sassessment, he noted that the minutes from the Board’s meeting held on March 9,2018, confirmed that decisions were made upon the cancellation of threedifferent licenses, but not that of the claimant’s licence.

The judge then pointedout that the Minister’s action to cancel ESIPL’s licence unilaterally withoutthe Board’s decision and advice, was not only in breach of Section 71 butfundamentally was also in breach of the objective of the Act (reaffirmingparagraphs `13 and 14).

“And as case law hasdemonstrated this Court has power to quash a decision of the Minister that ismade in blatant disregard or violates or is in breach of the objective of aStatute.

On the evidencetherefore his lordship at states paragraph 7 – 15 concluded that the Ministeracted beyond his powers in cancelling ESIPL licence and that the Minister’sdecision is null and void.

Upon that basis alsothe court also rejected the Solicitor General’s preposition that the Board doesnot have to separately meet, decide and advised the Minister; after show causeprocess because the Minister has discretion on whether or not to cancel.

The court thereforequashed the minister’s decision, validated the claimant’s licence and orderedthe government to meet the claimant’s costs.

This judgment involvedone of many controversial decisions taken by the former minister during histime in office.