LAND COMPENSATION & RESETTLEMENT ISSUES IN MINING By RICHMOND OSEI-HWERE FACULTY OF LAW, KNUST

 Introduction  Forms of Land Acquisition  Compensation  Resettlement

 The President holds the minerals in the ground in trust for the people of Ghana. See Article 257(6) of the Ghana Constitution  Minerals are treated separately from the land.  Grant of mineral rights does not necessarily carry with it the exclusive possession of the land.

 Securing adequate or vacant possession of the land the subject matter of the concession is a key challenge facing mining companies.  There is tension between mineral right and land right.

 Land require for mining can be acquired:  Compulsorily by the state  By agreement

 Section 2 of Act 703 provides: “Where land is required to secure the development or utilization of a mineral resource, the President may acquire the land or authorise its occupation and use under an applicable enactment for the time being in force.”

 Land may be acquired by the President under:  The State Lands Act, 1962 (Act 125)  The Administration of Lands Act, 1962 (Act 123)

 An acquisition under Act 125 requires that the land shall “… vest in the President on behalf of the Republic, free from any encumbrance whatsoever.”  The provision operates to extinguish the title of the landowner entirely.

 No lands have been acquired for mining under the provisions of Act 125.  Under Act 123, the President has the power to authorise the use and occupation of Stool Lands.

 Under Act 123, the President may declare any Stool land to be vested in him in trust.  The President may then execute any deed or do any act as a trustee in respect of the land.  In this case the title of the Stool is not extinguished altogether as in Act 125.

 Under s. 73(1) of Act 703, “the owner or lawful occupier of any land is entitled to and may claim from the holder of the mineral right compensation for the disturbance of the rights of the owner or occupier, in accordance with section 74.”

 Amount of compensation payable shall be determined by agreement between the parties.  The Minister in consultation with the Land Valuation Board makes a determination in respect of compensation if parties fail to agree.

 Compensation involves the restitution of affected persons to the position that they were in before the situation giving rise to the requirement for compensation.  Section 73(1) of Act 703 provides for compensation.

 Owner or occupier may apply for compensation.  In cases where land is owned by one party but leased to another – both are entitled to compensation.  In respect of compulsory acquisition of land by state – compensation is due the party who has exclusive use and occupation of land unless a better title is proved.

 Prompt payment of fair and adequate compensation. See Article 20(2)(a) of the Constitution  Section 73(1) of Act 703 provides that compensation may be made for “the disturbance of the rights of the owner or occupier, in accordance with section 74.”

 Act 125 makes provision for the payment of compensation by the State which may have “regard to the market value or the replacement value of the land or the cost of disturbance or any other damage suffered” as a result of taking the land.

 The quantum of compensation is determined on the basis of the value of the land to the person entitled and not the value to the person acquiring the land.  Occupier is entitled to compensation for all loss that he suffers including losses arising from having to relocate.

 Compensation losses include:  Loss of use of land  Damage to the land  Alteration to the natural state of the land  Crop and livestock compensation  Cost of buildings on the land

 Compensation losses  Social and cultural displacement  Damage to the natural environment  See Section 74 of Act 703 for compensation entitlement under the laws of Ghana.

 Compensation may take various forms including:  Cash payments  Provision of alternative land  Setting up trust funds for the benefit of the community as a whole  Provision of alternative livelihood

 Under Section 73 of Act 703, the holder of the mineral right is responsible for the payment of compensation.  In compulsory acquisition by the state, the claimant’s right to compensation are against the state.

 Resettlement or relocation involves the displacement of people from their place of habitat.  Under article 20(3) of the Constitution where a compulsory acquisition of land effected by the State involves displacement of inhabitants, the State is required to resettle the displaced inhabitants on suitable land with due regard to economic well-being and social and cultural values.

 Under Section 74 of Act 703 the cost of resettlement is to be borne by the mineral right holder.

 THE END