Solomon Resources v Attorney General Representing the Director of Mines [2011] SBHC 174; HCSI-CC 111 of 2011 (5 April 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 111 of 2011

BETWEEN

SOLOMON RESOURCES
Claimant

And

ATTORNEY GENERAL
(Representing the Director of Mines)
First Defendant

And-

ATTORNEY GENERAL
(Representing Minerals Board)
Second Defendant

Mr Etomea for the Claimant
Mr Damilea for the Defendants

Date of Hearing: 5th April 2011
Date of Judgment: 5th April 2011

Ruling

1. On 5th April I heard an application for interlocutory orders. I gave my ruling ex tempore. The Claimant has now asked for written reasons.

2. The brief facts are the Claimant is a firm which is interested in gold prospecting on Guadalcanal. It submitted three applications in August 2009. In December 2009 the Mines and Minerals Board (the Board") met and considered the applications. They recommended the Minister issue letters of intent in respect of the three areas the subject of the application. This the Minister did, which allowed the Claimant to proceed with the next stage of the process. The process is that set out in the Mines and Minerals Act [Cap. 42]. The evidence [1] alleges that following the issue of those letters another company, Aurelian Resources (SI) Ltd, began a campaign to stop the Claimant from acquiring prospecting licences covering all of the three areas. The campaign involved bribery, coercion, illegal mining and general underhand behaviour on the part of Aurelian Resources (SI) Ltd and officers of the company. I make it clear that I was not asked to make any finding of fact on those allegations and I therefore make no findings of fact about those allegations.

3. The upshot of this campaign was, according to the allegations set out in the evidence, that the landowners turned on the Claimant and made representations to the Minister of Mines, Energy and Rural Electrification to remove or excise some of the land from the area covered by the original letters of intent. The matter was considered by the Mines and Minerals Board (the Second Claimant) and the Director of Mines (the First Defendant). The Claimant attended a meeting of the former. There are allegations about the process adopted by the Board when considering the landowners requests. Basically the Claimant alleges breaches of the rules of natural justice in that he was not given the opportunity to fully argue his position.

4. The Board decided to excise or remove some of the area originally included in the applications made by the Claimant. The reason given was strong opposition from the landowners. The Claimant was naturally unhappy that the viability of his intended prospecting venture has been adversely affected by the decisions of the Board. The Board, at the time of the application, was about to meet and consider applications by Aurelian Resources (SI) Ltd covering the areas the Claimant says were wrongly excised from his applications. I was asked to hear an interlocutory application for:

"1. an interim order restraining the Director of Mines from calling for any applicant who applied for the area of land that was excised by the Mines and Minerals Board on 17th November 2010......

2. an interim order restraining the Mines and Minerals Board not to hear any application on 6th April 2011over the area of land excised by the Mines and Minerals Board....

3. in case the application is heard after 6th April 2011, an interim order restraining the Minister of Mines not to issue any letter of intent to any company over the area of land that was excised by the Board and the Director of Mines...."

5. At the hearing of the application Mr Damilea pointed to the difficulties the Claimant faced because of the Crown Proceedings Act [Cap. 8] and in particular section 18. There was no dispute the proceedings were proceedings against the Crown. The defendants were undoubtedly officers of the Crown. Section 18(2) applied. Section 18(1)(a), simply stated, says that the court cannot grant an injunction against the Crown but can, "in lieu thereof make an order declaratory of the rights of the parties". I indicated I accepted that argument and added that I failed to see how I could make the orders applied for. Mr Etomea agreed that I could not grant injunctions and instead sought declaratory orders. However, he was unclear as to what such orders should say. He appeared to me to be asking that I make an order declaring the excision of land was wrong and that the Board should not consider any applications in relation to the land excised at the next meeting. He asked I make declarations the Board meeting should be deferred. He also suggested I could make interim orders quashing the decision the Board had reached in November.

6. In my decision I indicated that I was uneasy about the Board's decision to excise or remove some areas of land from the Claimant's application. I said that I was not sure under which provision of the Mines and Mineral Act they had acted. The act does allow for excision under section 20 (6)(b) but that is in specific circumstances involving a previous application pending before the Board. I expressed the view that it was the landowners who controlled the areas to be prospected and it seemed to me they could enter into surface access agreements which excluded parts of the area covered by any letter of intent or decline to enter into surface access agreements over some areas. The provisions of section 21(7) would then apply.

7. However uneasy I was about the Boards action, I said I could not make the declaratory orders that the Claimant was seeking in lieu of the injunctions. What the Claimant was asking me to do was to make interim declaratory orders in the nature of an injunction. He wanted orders which would both declare the rights of the parties and declare the Board should not proceed further until the substantive case had been heard. The orders asked for in the interlocutory application were undoubtedly injunctions. I could not dress up interim declaratory orders made in lieu which had the effect of an injunction. The Claimant was asking me to do what I had no right to do. I indicated I would be happy to make declaratory orders to the effect the land should not have been excised until the Claimant had been allowed to complete the process under section 21 and even pointing out the risks being run by the Board if they granted rights to another company over the land in the meantime. I pointed out that even if I adopted that course of action it would still not prevent the landowners from declining to negotiate surface access agreements with the Claimant and the provisions of section 21 (7) might well apply, meaning the Claimant would have to amend his application to exclude those areas not covered by surface access agreements. I could even make interim orders declaring the Claimants application covered all the land originally applied for and could "advise" the Board to take account of section 20 (6) .

8. The Claimant persisted in his proposition that I should make interim declaratory orders which included provisions preventing the Board from considering applications from other companies until the substantive matter had been heard. I therefore declined to make any interim declaratory orders and refused to make the orders set out in the application filed on 1st April 2011.

Chetwynd J

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^[1] The sworn statement of David Kwan filed 1^st April 2011, the Claim filed 29^th March 2011 and the application for interlocutory orders filed 1^st April 2011