Mining, galamsey, environment
The 1992 Constitution (Constitution) provides the foundation for legitimate mining operations, providing in article 257(6) that the state owns ‘every mineral in its natural state.’
The minerals are ‘vested in the President on behalf of, and in trust for, the people of Ghana.’
Although the President is the trustee-agent of the minerals, article 269(1) vests the responsibility for regulating and managing mineral utilisation, and coordinating mineral-related policies in the Minerals Commission (MinCom) established by Parliament.
Further, any transaction involving mineral exploitation requires parliamentary ratification.
The Minerals and Mining Act, 2006 (Act 703), as amended, governs the mining industry. Mining is lawful in Ghana only where the Minister for Lands and Natural Resources (Minister), acting with MinCom, has duly authorised it and Parliament has ratified the resulting transaction.
Galamsey
The term ‘galamsey’ is used to refer to all unauthorised gold mining, irrespective of the size of it or who carries it out. Historically, the vast majority of indigenes were frozen out of legal mining because colonial legislation required demonstration of literacy, sufficient funds and successful prospecting as conditions for mining.
But, the discovery by indigenes, in the late 19th century, that mercury could be used to extract gold from sand residue, especially those left by the miners, led to the steady growth of an ‘unauthorised’ industry to ‘gather-them-and-sell,’ which led to the jargon ‘Galamsey.’
Galamsey is therefore illegal mining, often resulting in conflict with authorised mines and authorities due to its proximity to their sites.
It was not until 1989, that small-scale mining received legal recognition under the provisions of the now-repealed Small Scale Mining Act, 1989 (PNDCL 218). Its provisions, among others, defined small-scale mining as mining by methods not requiring substantial expenditure or specialised technology.
It also authorised mercury use, banned explosives, and excluded operators from paying income taxes or royalties.
Act 703 contains detailed provisions that regulate the entire mining sector. It also repealed and replaced PNDCL 218, and regulates small-scale mining, providing for the granting of licences with necessary conditions, imposing a renewable five-year term, allowing the minister to revoke licences, requiring licensees to mine efficiently, observe good practices and protect the environment, allowing explosive use with the minister's permission, and allowing licensees to purchase mercury from only authorised dealers.
Mitigation, environmental implications
The mining industry significantly impacts the environment, and laws enforce strict requirements to minimise long-term adverse effects.
A mineral rights holder is therefore required to obtain necessary approvals from the Forestry Commission under the Forest Act, 1927 (CAP 157) if the operations would involve entering a forest.
And a mineral right holder may only use water resources for mining purposes after obtaining approvals under the Water Resources Commission Act, 1996 (Act 522).
Act 703 also required the permit of the Environmental Protection Agency (EPA) and compliance with environmental regulations related to mineral exploitation. There are also detailed environmental provisions in the Minerals and Mining (Health, Safety and Technical) Regulations, 2012 (LI 2182).
LI 2182 requires mining operating plans to include details on abandonment methods to protect recoverable reserves and unmined resources. It also allows inspectors to inspect mines and minimise environmental damage, ordering the cessation of operations and withdrawal of personnel if necessary for safety, health or the environment.
The manager of a mine is obligated to ensure safety, health and environmental compliance by observing regulations and lawful orders.
LI 2182 also provides, concerning gold processing plants that use cyanide, for operators to conduct initial risk assessments for cyanide-related work practices, in order to protect employees, the environment and the public.
It also mandates companies storing cyanide to develop emergency procedures, avoid public and environmental exposure, ensure accessibility to emergency services, and maintain a safe location to prevent environmental pollution.
Small-scale mining licensees are not left out. LI 2182 provides that a small-scale mining licence holder must ensure the mine environment is free from environmental hazards.
This includes maintaining safe work environments, providing adequate information and supervision, educating workers on occupational health and safety procedures, and ensuring the safe handling of plants, substances and mercury.
The existing legal regime appears to us to be sufficiently comprehensive to ensure environmental protection in legal mining.
Thus, if harmful practices occur, the law must be applied, potentially leading to suspension or cancellation of mineral rights.
That is why our view is that instead of advocating a ban on mining, the advocacy should centre on ensuring compliance with environmental protection rules.
The issue of Galamsey significantly harms the environment due to a lack of adherence to legal regulations.
Since these operations are already prohibited by law, enforcing the existing laws would likely reduce environmental damage.
That is why we think that the emphasis should be on preventing illegal mining and then enforcing compliance.
However, if the call is for a ban or other halting of legal mineral operations, then critical legal consequnces would have to be borne in mind.
Breach, law
Banning legal mining without evidence of violations by legal miners would be a legal breach, as the Minister's power to suspend or revoke mineral rights is clearly defined and limited by law.
For instance, in Republic V High Court, General Jurisdiction (6) Accra Ex Parte: Attorney-General [Exton Cubic Group Ltd – Interested Party] (2019), the Supreme Court acknowledged the Minister's authority to revoke a mineral right if the statutory and constitutional procedures for granting mineral rights are not followed.
Terminating for breach
Further, both the Minerals and Mining Act, 2006 (Act 703) and the Minerals and Mining (Licensing) Regulations, 2012 (LI 2176), empower the Minister to suspend or cancel a mineral right upon recommendations of the Minerals Commission (MinCom), if the holder (i) fails to pay fees, (ii) becomes insolvent, (iii) makes false statements, (iv) is convicted of smuggling or illegal mineral dealing or (v) fails to conduct operations in accordance with the approved work programme.
In these scenarios, the Minister must notify the holder of the breach and allow a minimum of 120 days (for mining leases) or 60 days (for other mineral rights) for the holder to address the breach.
If the breach is not resolvable, the lessee or licensee must provide to the Minister justification against suspension or cancellation. MinCom will then review the holder’s response and if the holder does not remedy the breach, or does not respond, or the response is invalid, recommend suspension or termination.
Similar termination requirements exist for small-scale mining licences.
Thus, while the law permits termination for the acts of holders, we have not found any provision that permits the Minister to ban legal mining operations because of the illegal acts of persons other than the right holder, for example, illegal miners.
It, therefore, appears to us that the stated breaches of the law constitute conditions precedent to exercising the ministerial power to terminate.
Thus, the minister must be satisfied that those conditions indeed exist before he may exercise that power; otherwise, he would be held to have acted prematurely and arbitrarily.
Public Interest Termination
Act 703 also allows the Minister to revoke small-scale mining licences if the licensee has violated the conditions of the licence, or it is in the public interest to do so.
Public policy reasons for revoking artisanal mining licenses will likely involve remediable breaches, such as environmental degradation.
Revocations in the public interest due to licence holder breaches must, therefore, follow the processes outlined above.
Outright revocation should only occur as a result of circumstances beyond the licence holder's control.
‘Public interest’ is defined in the Constitution as including ‘any right or advantage that ensures or is intended to inure to the benefit generally of the whole of the people of Ghana.’
The High Court identified in Center for Public Interest Law & Another v Tema Oil Refinery (2007) that based on this definition, matters of environmental pollution trigger public interest concerns.
We, therefore, think that widespread environmental damage from mining would raise public interest concerns and may justify the Minister revoking small-scale licences.
However, any court reviewing such a decision will carefully consider the balance between the State's interest and the citizens' obligations.
The Supreme Court identifies three grounds for judicial review: (i) illegality, (ii) irrationality and (iii) procedural impropriety.
The writers are a Senior Partner and an Associate at Bentsi-Enchill, Letsa & Ankomah, respectively.
