Galamsey
Mineral resources belong to the Ghanaian people in common, and their stewardship is entrusted to the President in accordance with the governing provisions of the Constitution. Under this framework, the Parliament of Ghana may make specific laws regulating rights and interests in minerals.
Last week, this column dealt with Sections 1-5 of Act 703 of 2006 as amended in 2015 (Minerals and Mining Act, 2006). I would want to skip Sections 6, 7 and 8 of the law and begin from Section 9 onwards for the purposes of this article.
Section 9 of the Act 703 deals with Mineral Rights and states that Mineral activities require mineral rights. Again, my understanding of the above is that for anyone or group of people to be able to mine, they should have been granted mineral rights.
Section 9(1) ‘Despite a right or title which a person may have to land in, upon or under which minerals are situated, a person shall not conduct activities on or over land in Ghana for the search, reconnaissance, prospecting, exploration or mining for a mineral unless the person has been granted a mineral right in accordance with this Act’.
Sub-section (2) states that ‘Activities conducted under a mineral right shall be limited to the activities permitted by the mineral right, and sub-section (3) says, ‘subsection (1) does not prevent a government institution or agency from conducting geological activities in accordance with its powers under an enactment’. This section of the law precludes anybody from beginning a process with the view of engaging in mining unless that person has been given a Mineral Right, with the exception of the government institution or agency clothed with powers under the law.
The question again is, in all instances where individuals, group of individuals or corporate bodies had engaged in any of the pre-mining activities anywhere in Ghana, did they obtain mineral rights to embark upon their activities? If they did not, what was the Minister in whose hands Presidential powers lay, do to stop them? We saw people who had no mineral rights in the first instance engaged in mining activities but we did nothing about it, in this case the Minister and the Ministries.
Section 10 of the Act is even more explicit on who qualifies to be granted a mineral right. It states ‘Unless otherwise provided in this Act, a mineral right shall not be granted to a person unless the person is a body incorporated under the Companies Code 1963 (Act 179), under the Incorporated Private Partnership Act 1962 (Act 152) or under an enactment in force’.
My understanding of the above, once again, is that if a person does not meet any of the three legal requirements stated in Section 10 of the law, that person cannot be given a mineral right to even begin ‘reconnaissance, prospecting, exploration, or mining for minerals’.
Section 11 requires that prospective miners must apply for mineral rights. ‘An application for a mineral right shall be submitted to the minerals Commission in the prescribed form and shall be accompanied with a statement providing,
(a)Â Â Particulars of the financial and technical resources available to the applicant for the proposed mineral operations,
(b)Â An estimate of the amount of money proposed to be spent on the operations,
(c)Â Â Particulars of the programme of proposed mineral operations, and,
(d) Particulars of the applicant’s proposals with respect to the employment and training in the mining industry of Ghanaians.
The Law, on the face of it, does not prohibit mining in this country but requires a formal process for the purposes of knowing and identifying those in whose hands the state has entrusted our collective resource for our collective good. Operators in the mining sector are also supposed to abide by certain rules, regulations and guidelines for the good of all. The question again is that, have we been insisting on the above? If yes, then it should not be too difficult for those who did not follow the law to be known, since their activities are done in the open and in broad day light. The data of those who operate legitimately must also be available to the authorities to monitor their activities.
Section 12 of the Act also outlines the processes the applications must go through. ‘The Commission shall, unless delay occurs because of a request for further information from an applicant or a delay is caused by the applicant, submit its recommendation on an application for a mineral right to the Minister within ninety days of receipt of the application.
Section 13 (1) ‘The Minister shall within sixty days on receipt of recommendation from the Commission make a decision and notify the applicant in writing of the decision on the application and where the application is approved, the notice shall include details of the area, the period and the mineral subject to the mineral right’. Sub-section (2) ‘The Minister shall, not less than forty-five days prior to making a decision under sub-section (1), give a notice in writing of a pending application for the grant of a mineral right in respect of the land to a chief or allodial owner and the relevant district Assembly’.
Subsection(3) ‘A notice given under subsection (2) shall
(a)Â Â State the proposed boundaries of the land in relation to which the mineral right is applied for, and
(b)Â Be published in
(i)a manner customarily acceptable to the areas concerned, and
(ii)the Gazette and exhibited at the offices of the District Assembly within whose district, a part of the area is situated.
Sections 12 and 13, just as others above, give a lot of powers to the Minister to act on any applications submitted through the Commission to his office. Indeed the laws oblige the Minister to act on the recommended applications within stated periods and exhibit transparency in his decision to grant such applications by stating the proposed boundaries as well as public publications to inform direct and indirect stakeholders, particularly in areas where the mining rights are being given.
One of the most important aspects of the Act, in my view, is section 14. Section 14 (1) states ‘A mineral right shall not in whole or in part be transferred, assigned, mortgaged or otherwise encumbered or dealt in, in a manner without the prior approval in writing of the Minister, which approval shall not be unreasonably withheld or given subject to unreasonable conditions.
By this, even a mineral right holder cannot appropriate part of such right to a third party without a written approval from the Minister, the Minister and Parliament would not also approve a right application which intends to use the  galamsey or any unapproved methods to mine in the country. Indeed, the Commission would not recommend galamsey operators’ applications nor applications which did not meet the requirements as stated in Section 11 of the Act to the Minister for consideration and approval since they are not likely to meet the requirements of Section 11 of the Act.
How did the galamsey operators get the courage to do what they did in the full glare of the state without anyone blinking an eye until now? Is it that some mineral right holders, in violation of the law, partly transfered, assigned or mortgaged their mineral rights to third parties without reference to the Minister? Or is it also the case that the illegal miners have a means of knowing the existence of minerals in any part of the country and then move in to mine? I am emphasizing the role and inactions of the Minister because the law gives him all the powers to deal with the matter of minerals, who should mine or who should not mine and where.
What measures have been put in place to ensure that those who hold mineral rights do not part or assign portions of those rights to other parties without such rights to engage in any form of mining activities when the Minister has not authorized that in writing? Did the Minister or his Ministry not see the open degradation of the mass of land and the pollution of water bodies by the illegal operators? Why was nothing done about it? Will be back.