Legal Mining in Ghana
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 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It was not until 1989, that small scale mining received legal recognition under the provisions of the now-repealed Small Scale Mining Act, 1989 (PNDCL 218).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 specialized 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 It also repealed and replaced PNDCL 218, and regulates small scale mining, providing for the granting of licences with necessary conditions, imposing a renewable 5-year term,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 of 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 for a ban on mining, the advocacy should center 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 preventing illegal mining and then enforcing compliance.
However, if thall is for a ban or other halting of legal mineral operations, then critical legal consequences would have to be borne in mind, and we shall discuss them in the next instalment.
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Read the original publication at Bentsi-Enchill, Letsa & Ankomah
