Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.

4. Results: Answers
Mining
1.
Legal and regulatory framework
1.1
Which legislative and regulatory provisions govern mining in your jurisdiction?
Ghana

Answer ... The principal laws governing mining in Ghana include the following.

Substantive legislation:

  • The 1992 Constitution of the Republic of Ghana;
  • The Minerals and Mining Act (703/2006), as amended by the Minerals and Mining (Amendment) Act (900/2015);
  • The Minerals Income Investment Fund Act (987/2018); and
  • The Minerals Development Fund Act (900/2016).

Regulations:

  • The Minerals and Mining (Licensing) Regulations, 2012 (LI 2176);
  • The Minerals and Mining (Explosives) Regulations, 2012 (LI 2177);
  • The Minerals and Mining (General) Regulations, 2012 (LI 2173);
  • The Minerals and Mining (Compensation and Resettlement) Regulations, 2012 (LI 2175);
  • The Minerals and Mining (Support Services) Regulations, 2012 (LI 2174); and
  • The Minerals and Mining (Health, Safety, and Technical) Regulations, 2012 (LI 2182).

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
1.2
When was the mining legislation last reviewed?
Ghana

Answer ... The last review of the mining legislation took place in 2015. However, between 1986 and 2006, the Minerals and Mining Law (153/1986, PNDCL) was the basic law regulating the mining industry in Ghana. Although this law was regarded as ground-breaking in comparison to many regimes in sub-Saharan Africa, changes on the international mining scene necessitated its revision. After a careful review of the law, the current Minerals and Mining Act (703/2006), as amended by Act 900/2015, became the governing law for Ghana’s minerals and mining sector.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
1.3
What other legislative and regulatory provisions have relevance for mining operations in your jurisdiction?
Ghana

Answer ... These include the following:

  • the Companies Act (992/2019);
  • the Environmental Protection Agency Act (490/1994);
  • the Ghana Investment Promotion Centre Act (865/2013);
  • the Income Tax Act (896/2015);
  • the Forestry Commission Act (571/1999);
  • the Water Resources Commission Act (522/1996); and
  • the Ghana Geological Survey Authority Act (928/2016)

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
1.4
Are there any regional treaties or laws that need to be taken into account?
Ghana

Answer ... Ghana has subscribed to broader continental, sub-regional and international policy initiatives on mining, including:

  • the African Mining Vision of 2009 and its 2011 Action Plan developed under the auspices of the African Union; and
  • the Economic Community of West African States Mineral Development Policy, adopted in 2011.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
1.5
Which bodies are responsible for enforcing the applicable mining laws and regulations? What powers do they have?
Ghana

Answer ... The key regulatory institutions are as follows.

Minerals Commission: The Minerals Commission was established under the Minerals Commission Act (450/1993) for the regulation and management of the mobilisation of mineral resources of Ghana and the coordination of the policies in relation to them. The commission serves as the technical advisory agency to the government. The Minerals Commission is empowered under Section 100 of the Minerals and Mining Act to supervise, under the direction of the minister of lands and natural resources, the proper and effective implementation of the act and the various regulations made thereunder. The commission is mandated under Section 2 of the Minerals Commission Act to:

  • formulate recommendations of national policy for the exploration and exploitation of mineral resources, with special reference to establishing national priorities with due regard to the national economy;
  • advise the minister of lands and natural resources on matters relating to minerals;
  • monitor the implementation of government policy on minerals and report on this to the minister;
  • monitor the operation of all bodies or establishments with responsibility for mining;
  • receive and assess public agreements relating to minerals; and
  • collect data on national mineral resources.

In addition to the commission’s broad supervisory role, the Inspectorate Division of the Minerals Commission is responsible for enforcing the mining regulations. The Inspectorate Division was established under Section 101 of the Minerals and Mining Act. The head of the Inspectorate Division or an officer authorised by the head may at reasonable times enter a reconnaissance, prospecting or mining area or premises in the area other than a residential dwelling to ascertain whether a nuisance is being created in the area by the mineral operations. The division’s primary objective is to ensure that mining operations are undertaken in compliance with the basic laws and regulations of Ghana.

Forestry Commission: The Forestry Commission was established under the Forestry Commission Act (571/1999). The Forestry Commission is responsible for the regulation of the utilisation of forest and wildlife resources, the conservation and management of these resources and the coordination of related policies. With respect to mining, Section 18 of the Minerals and Mining Act provides that the holder of a mineral right must obtain a permit from the Forestry Commission before undertaking any mineral operations.

Water Resources Commission: The Water Resources Commission was established under the Water Resources Commission Act (522/1996). The Water Resources Commission is responsible for the regulation and management of the utilisation of water resources and the coordination of related policy. The Water Resources Commission is therefore mandated to grant water rights. Under Section 17 of the Minerals and Mining Act, the holder of a mineral right may, for purposes of or ancillary to mineral operations, obtain, divert, impound, convey and use water from a river, stream, underground reservoir or watercourse within the land that is the subject of the mineral right, subject to obtaining the requisite approvals or licences under the Water Resources Commission Act. Under the Water Use Regulation, 2001 (LI 1692), passed pursuant to the Water Resources Commission Act, the commission also has the power to enter any land to inspect works constructed or under construction there, to ascertain the amount of water obstructed or capable of being hampered by means of the works.

Environmental Protection Agency (EPA): The EPA was established under the Environmental Protection Agency Act (490/1994). The EPA is responsible for, among other things, the enforcement of environmental regulations. In accordance with Section 18 of the Minerals and Mining Act and the Environmental Assessment Regulations, 1999 (LI 1652) of the EPA, the holder of a mineral right requires an environmental permit from the EPA in order to undertake any mineral operations. The Environmental Assessment Regulations constitute the main legal framework used by the EPA to regulate and monitor mineral operations. The regulation requires the applicant to prepare a scoping report setting out the scope or extent of the environmental impact assessment to be carried out by the applicant and includes a draft term of reference, which indicates the essential issues to be addressed in the environmental impact statement. The holder of a mineral right granted an environmental permit must submit an annual environmental report in respect of the mineral operations to the EPA.

Lands Commission: The Lands Commission is responsible for ensuring the judicious management of Ghana’s land. The Land Valuation Board – a division of the Lands Commission, which is involved in the valuation of land and other properties – assists the mining sector on issues relating to compensation.

Ghana Geological Survey Authority: The Ghana Geological Survey Authority was established under the Ghana Geological Survey Authority Act (928/2016), with a mandate to advise the government on geoscientific issues relating to mineral resources, environment and hydrogeology.

The objects of the authority under the act are to:

  • carry out systematic geological mapping, assess, monitor and evaluate geological hazards and risks, collect geoscientific data, manage and disseminate geoscientific information;
  • promote the search for, and exploitation of, minerals in Ghana, undertake research in the field of geoscience and furnish specialised geoscientific services;
  • conduct research into matters of importance for the exploration, exploitation and protection of the nation’s geological and geoscientific natural resources; and
  • conduct site, foundation or geotechnical investigations and issue reports as pre-requisites for major construction projects in the country.

The functions of the authority under the act are to:

  • advise the government on matters relating to geology, geohazards and the search for and exploitation and development of mineral resources in the country;
  • conduct geological, geochemical, geophysical, seismological, hydrogeological, geotechnical and geo-environmental surveys, mineral exploration, systematic mapping of rocks and other geological or geoscience materials, including soil and clays, including in offshore areas;
  • develop and maintain a national seismic network to monitor earthquakes, tsunamis and mine blasts that have the potential to impact negatively on persons and property in the country and for optimum land-use planning;
  • serve as a national repository for geoscientific data and information generated by public and private entities, including mining and mineral exploration companies which operate in the country;
  • collaborate with relevant local and international bodies on geoscientific matters that the board established under Section 5 of the Act considers necessary;
  • conduct site or foundation investigations and issue certified reports before major construction works or projects that have the potential to impact on the subsurface structure and the socio-economic, cultural and aesthetic environment;
  • conduct ground surveys or airborne surveys, take samples and make borings necessary to conduct investigations and prepare relevant reports to assist with national development;
  • liaise with relevant public agencies involved in land-use planning for sustainable use of the spatial environment in Ghana;
  • perform such functions and undertake such investigations as the minister may assign to the authority; and
  • perform any other functions conferred on it by the act or that are ancillary to the achievement of its objectives.

The Ghana Geological Survey Authority also plays a significant role in the mining industry of Ghana.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
1.6
What is the regulators’ general approach in regulating the mining sector?
Ghana

Answer ... In seeking to regulate the mining sector, the regulator’s general approach is to ensure that mineral operations are conducted responsibly. The regulator considers that neglect of the environment and harm to local communities caused by mineral resource development are unacceptable. The intention is therefore to ensure that Ghana secures the full economic and social benefits that mining development promises, in an environmentally and socially responsible manner.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
2.
Mining industry
2.1
How mature is the mining industry in your jurisdiction?
Ghana

Answer ... The mining industry in Ghana is very mature. Ghana has substantial mineral resources and a well-established mining sector, which has grown considerably in recent years to become an important pillar of the economy. This is a result of the pursuit of generally liberal macroeconomic policies by successive governments. These measures have helped in no small part to attract investment in the economy at large, but particularly in the mining industry, especially the gold sector.

Gold, diamonds, manganese and bauxite are the major minerals mined in Ghana, but the country also has unexploited deposits of iron ore, copper, chrome, nickel, limestone, quartz and mica. Mining has played an important role in the political economy of Ghana for centuries.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
2.2
What are the key minerals which are mined in your jurisdiction and where is mining activity typically based?
Ghana

Answer ... The key minerals which are mined in Ghana include gold, diamonds, bauxite and manganese.

Mining activity is typically based in the Ashanti Region, the Western Region, the Northern Region and the Eastern Region.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
2.3
Are any minerals deemed strategic and, if so, what impact does this have?
Ghana

Answer ... Gold is deemed strategic to Ghana’s economy. The World Bank recently published a report showing that Ghana has now surpassed South Africa for gold exports, exporting 158 tonnes of gold in 2018. The contribution of gold to the economy of Ghana is remarkable, even though Ghana produces other minerals, such as diamonds, manganese and bauxite. In 2015 the earnings from gold accounted for 96.68% of the total earnings from exported minerals. Diamond, bauxite and manganese racked up 0.3%, 1.24% and 1.95%, respectively. The mining sector contributed GHS 15.8 billion and GHS 17.1 billion in 2016 and 2017 respectively, and is one of the largest sources of revenue for the government, in the form of mineral royalties, corporate taxes and employee income taxes.

Data from the Bank of Ghana shows that gold exports increased from 3.84 million ounces in 2016 to 4.61 million ounces in 2017. The 20% growth in exports was driven mainly by a combination of a modest increase in the gold price and an upturn in the output of large-scale producers, as well as the volume of gold exported by licensed gold exporting companies. Exports of manganese increased from 2 million tonnes in 2016 to 3 million tonnes in 2017, while shipments of bauxite also expanded from 1.14 million tonnes to 1.47 million tonnes over the same period.

These figures demonstrate the strategic importance of minerals to the economy of Ghana.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
2.4
Who are the key players in the mining industry in your jurisdiction?
Ghana

Answer ... The major gold producing companies in Ghana are:

  • Goldfields Ghana Ltd (Tarkwa and Abuso mines);
  • AngloGold Ashanti (Obuasi and Iduapriem mines);
  • Golden Star Resources (Bogosu/Prestea and Akyem mines); and
  • Newmont Ghana (Ahafo and Akyem mines).

Ghana Bauxite Company Ltd operates the country’s only bauxite mine at Awaso; while Ghana Manganese Company Limited’s Nsuta-Wassa open-pit mine remains the only significant producer of manganese ore in Ghana. Ghana Consolidated Diamonds’ Akwatia diamond mine is also the only operating diamond mine in Ghana.

Adamus Resources Limited – an Australian exploration company with its headquarters based in West Perth, Australia – has also established its operations in Ghana. It runs 90% of Ghana’s Nzema Gold Project, which produces an average of 100,000 ounces of gold annually.

Perseus Mining Limited is an Australian mining company with a diversified focus in West Africa. It runs the Edikan gold mine, where it has produced over 200,000 ounces of gold since 2012.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
2.5
In addition to exploration rights and mining rights, what other mining rights and titles exist (eg, artisanal or small-scale mining rights)?
Ghana

Answer ... Subject to the laws on minerals and mining in Ghana, small-scale and artisanal miners are permitted to undertake mining in Ghana. Small-scale and artisanal mining is reserved for Ghanaians only.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.
Exploration rights
3.1
What licences are required to undertake prospecting and exploration activities in your jurisdiction? Do these vary depending on the type of mineral or the location of the activity?
Ghana

Answer ... Ghana grants two types of licences to persons and corporate bodies to undertake prospecting and exploration activities: reconnaissance licences and prospecting licences.

Reconnaissance licence: A reconnaissance licence confers on the holder and a person authorised in accordance with the Minerals and Mining Act the exclusive right to carry out reconnaissance in the reconnaissance area for the minerals to which the licence relates and to conduct other ancillary/incidental activity. The holder of a reconnaissance licence may enter a reconnaissance area and erect camps or temporary buildings; however, the holder shall not engage in drilling or excavation. A reconnaissance licence may be granted for an initial period of up to 12 months. The holder of a reconnaissance licence may, no later than three months before the expiration of the initial term of the licence, apply to the minister for an extension of the term of the licence in respect of all or part of the reconnaissance area. A reconnaissance licence may be extended once only for a period not exceeding 12 months.

Prospecting licence: The holder of a prospecting licence may, in the exercise of its rights under the licence:

  • enter land to which the licence relates to prospect for the mineral in respect of which the licence is granted;
  • make boreholes and excavations that may be necessary for the prospecting purposes;
  • erect camps and put up temporary buildings necessary to the prospecting operations; and
  • conduct other activity ancillary or incidental to the prospecting.

A prospecting licence must be granted for an initial period not exceeding three years. The area of land in respect of which a prospecting licence may be granted must be a block or a number not exceeding 750 contiguous blocks each, with a side in common with at least one other block.

The grant of reconnaissance and prospecting licences is not dependent on the type of mineral or the location of the mineral activity. It is granted pursuant to the dictates of the laws on minerals and mining in Ghana.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.2
What requirements must be satisfied to obtain a licence?
Ghana

Answer ... To obtain an exploration licence, the applicant must demonstrate that it is an incorporated company registered under the Companies Act or the Incorporated Private Partnership Act, or registered under any other enactment in force. Most importantly, the applicant must also meet the minimum capital requirement stipulated under the Ghana Investment Promotion Centre Act.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.3
What is the procedure for obtaining a licence? How long does this typically take?
Ghana

Answer ... Sections 5 and 89 of the Minerals and Mining (Licensing) Regulations state the processes and requirements for obtaining an exploration licence. An application for an exploration licence (reconnaissance and prospecting) shall be made in person by the applicant to the Minerals Commission, providing the following information:

  • the particulars of the company, comprising:
    • its registered name;
    • its registered residential and postal addresses;
    • its official telephone and fax numbers; and
    • its official email address;
  • certified copies of documents of incorporation that show that the applicant is a body incorporated under the Companies Act or the Incorporated Private Partnerships Act, or registered under any other enactment in force;
  • a certified copy of the company’s regulations and details of its shareholders and directors;
  • the number of blocks and the cadastral coordinates delineating the area being applied for;
  • the mineral to be reconnoitred/prospected for;
  • the qualifications and experience of the management and other members of the technical team in charge of the reconnaissance/prospecting operations;
  • the work programme, describing the type and scope of the work to be conducted, including expenditures on reconnaissance/prospecting;
  • the particulars of the financial resources available to the applicant for the proposed reconnaissance/prospecting operations; and
  • evidence of payment of the applicable fees.

An applicant for an exploration licence must, before the application is filed, conduct a search of the cadastral map and cadastral registers to determine the availability of the area. Once submitted, the application shall be subjected to internal review and consideration by the commission. It typically takes six months for the grant of a licence.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.4
Who can own exploration rights in your jurisdiction? Do specific requirements or restrictions apply to foreign operators?
Ghana

Answer ... Mineral rights are granted to private parties (whether Ghanaians or foreigners), granting them the right to engage in mining activity within the designated area stated in the licence. In the Ghanaian mining industry, there is no specific requirement for a foreign entity or person to have a Ghanaian partner. However, small-scale mining is exclusively reserved for Ghanaians. Aside from this exception, there is no distinction (discrimination) in the application of the law for the granting of mining rights that may be granted to a Ghanaian as against a foreign party or entity.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.5
What fees and other charges are incurred in obtaining a licence?
Ghana

Answer ... These include the following:

  • the incorporation fees for setting up the company and the fees for meeting the minimum capital requirements, as provided for by the Ghana Investment Promotion Centre;
  • the application fees payable to the Minerals Commission for the grant of a licence or any extension; and
  • the environmental permit fees to be paid to the Environmental Protection Agency

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.6
What is the duration of a licence? What is the process for renewal?
Ghana

Answer ... A reconnaissance licence is granted for an initial period of up to 12 months and may be extended once only for a period not exceeding 12 months.

A prospecting licence is granted for an initial period of up to three years. A prospecting licence may be extended for a further period of up to three years in respect of all or any number of blocks that are the subject of the prospecting licence.

The holder of an exploration licence may apply to the minister, at least three months before the expiration of the initial term of the licence, for an extension of the term initially granted in respect of all or part of the reconnaissance/prospecting area. Where the holder of an exploration licence has materially complied with the obligations imposed by the Minerals and Mining Act with respect to the holding of the licence and the activities to be conducted thereunder, the minister shall extend the term of the licence pursuant to the dictates of the law.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.7
What are the operator’s rights and obligations under the licence?
Ghana

Answer ... The holder of a reconnaissance licence has the exclusive right to carry on reconnaissance in the reconnaissance area for the minerals to which the reconnaissance licence relates and to conduct other ancillary or incidental activities. A reconnaissance licence holder has the right to erect camps or temporary buildings. However, it must not engage in drilling or excavation.

The holder of a prospecting licence has exclusive rights under the licence to:

  • prospect for minerals in respect of which the licence is granted;
  • make boreholes and excavations that may be necessary for prospecting purposes;
  • erect camps and temporary buildings necessary for the prospecting operations; and
  • conduct other activities ancillary or incidental to the prospecting obligation.

The holder of a reconnaissance licence has the following obligations under the licence:

  • to commence reconnaissance operations within one month of the date of issue of the licence or some other further period specified in the licence;
  • to carry on reconnaissance operations under the approved programme of reconnaissance operations;
  • to submit quarterly to the Minerals Commission geological and financial reports, and other information relating to the reconnaissance operations as may be required;
  • to comply with the terms and conditions of any environmental permit that relates to the operations to be carried out under the licence;
  • to report any mineral discovery to the commission within 30 days of its discovery;
  • within 30 days of the end of the term of the licence, to remove any camps or temporary buildings or installations that it erected to carry out reconnaissance operations; and
  • within 90 days of the end of the term of the licence, to repair or make good any damage caused to the surface of the land to the satisfaction of the Environmental Protection Agency and the Minerals Commission.

Minerals obtained in the course of reconnaissance operations shall remain the property of Ghana and – except for a reasonable quantity that may be kept for sample, assay, analysis or other examination – may be disposed of by the holder of the licence or by any other person without the written consent of the Minerals Commission.

The holder of a reconnaissance licence may not conduct any prospecting or mining operations in the area which is the subject of the licence or in any other area.

The holder of a prospecting licence has the following obligations:

  • to commence prospecting operations within three months of the date of issue of the licence or at a time specified by the minister of lands and natural resources;
  • to demarcate and keep demarcated the prospecting area in the prescribed manner;
  • to carry on prospecting operations pursuant to the programme of prospecting operations;
  • to notify the minister through the Minerals Commission of the discovery of a mineral to which the prospecting licence relates within 30 days of the discovery;
  • to notify the minister through the Minerals Commission of the discovery of mineral deposits of possible economic value within 30 days of the discovery;
  • to fill in or otherwise remedy, to the satisfaction of the commission, any boreholes or excavations made during the prospecting operations;
  • unless the commission stipulates otherwise, to remove within 60 days of the expiration of the prospecting licence camps, temporary buildings or machinery erected or installed, and make good to the satisfaction of the commission damage to the surface of the land occasioned by the removal;
  • subject to the conditions of the prospecting licence, to expend on prospecting not less than the amount specified in the prospecting licence; and
  • to submit reports of other documents to persons at prescribed intervals and supporting documents containing all necessary information.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.8
Are there any requirements re relinquishment of an exploration licence or part of the area covered by an exploration licence?
Ghana

Answer ... The holder of a mineral right (exploration licence) that wishes to relinquish or surrender the mineral right or to surrender all or a part of the land subject to the mineral right must apply to the minister for a certificate of surrender at least two months before the date on which the holder wishes the surrender to take effect.

A certificate of surrender shall not be issued to an applicant if any of the following conditions exist:

  • The applicant is in default of any of its obligations under the laws and regulations;
  • The applicant fails to provide the necessary records and reports in relation to its mineral operations;
  • The minister is not satisfied that the applicant will surrender the land in a condition which is safe and accords with good mining practice; or
  • In respect of land, the remaining area of the land after the surrender would not be less than one block.

Where a certificate of surrender is issued under this section and only part of the land subject to the mineral right is surrendered, the minister will amend the relevant licence accordingly or cancel the mineral right where the surrender is in respect of the whole area covered by the mineral right.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.9
Can licences be transferred? If so, how and subject to what consents? Do any restrictions or taxes apply to direct or indirect transfers?
Ghana

Answer ... Yes, under the Minerals and Mining Act the holder of a mineral right shall not, in whole or part, transfer, assign, mortgage or otherwise encumber the mineral right without the prior written approval of the minister of lands and natural resources, which shall not be unreasonably withheld or be given subject to unreasonable conditions.

Where the minister does not give written approval to the applicant within 30 days, the minister shall be mandated to issue written reasons to the applicant on the applicant’s request. The minister is mandated by law to provide the applicant, within 14 days of receipt of its request, with the reasons for refusal of the application.

A dispute that arises as a result of an application to transfer, assign, mortgage, or otherwise encumber a mineral right will be subject to alternative dispute resolution mechanisms under the Minerals and Mining Act, with initial efforts geared towards reaching an amicable settlement.

Any instrument (eg, a deed of transfer) that purports to effectuate the transfer of a mineral right is subject to stamp duty charged on the consideration paid under the transfer instrument at a rate up to 1%.

Also, any monetary gains arising from an assignment in a mineral right is considered as the income of the mining company and is therefore subject to corporate tax at a rate of 35%.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
3.10
Does an exploration licence give any priority when applying for a mining right?
Ghana

Answer ... No, there is no provision under any of the substantive laws and regulations that grants preferential treatment or priority to holders of exploratory licences when they apply for a mineral lease. Mineral rights/leases are granted on a first come, first served basis, so long as the applicant meets the criteria specified in the Minerals and Mining Act. The holder of a reconnaissance/prospecting licence can apply to convert its licence to a mining lease subject to meeting the requirements stated under the Minerals and Mining (Licensing) Regulations, 2012 for the grant of a mining lease.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.
Mining rights
4.1
How is ownership of mining rights determined in your jurisdiction?
Ghana

Answer ... For the avoidance of doubt, the Constitution of Ghana states succinctly that title or ownership of every mineral in its natural state under or upon any land in Ghana; in rivers, streams, watercourses throughout Ghana; and in the exclusive economic zone and any areas covered by the territorial or continental shelf is the property of Ghana, and is vested in the president for and on behalf of and in trust for the people of Ghana.

Mineral rights in whatever form and shape are granted to private parties that meet the requirements under the applicable laws to undertake the exploration of the minerals in the ground affected by the grant.

However, any transaction, contract or undertaking involving the grant of a right or concession by or on behalf of any person, including the government of Ghana, to any other person or body of persons howsoever described, for the exploitation of any mineral, water or other natural resources of Ghana requires parliamentary ratification.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.2
What are the key requirements in order to apply for a mining right?
Ghana

Answer ... Under the Minerals and Mining Act, the following key requirements must be satisfied by an applicant before an application for mineral lease can be made:

  • the particulars of the company, comprising:
    • its registered name;
    • its registered residential and postal addresses;
    • its official telephone and fax numbers; and
    • its official email address;
  • certified copies of documents of incorporation that show that the applicant is a body incorporated under the Companies Act or the Incorporated Private Partnerships Act, or registered under any other enactment in force;
  • a certified copy of the company’s regulations and details of its shareholders and directors;
  • the number of blocks and the cadastral coordinates delineating the area being applied for;
  • the mineral to be mined;
  • the qualifications and experience of the management and other members of the technical team in charge of the mining operations;
  • a feasibility report prepared according to the Minerals Commission’s guidelines;
  • the particulars of the financial resources available to the applicant for the proposed mining operations;
  • evidence of payment of the applicable fees;
  • the particulars of the applicant’s proposal with respect to the employment and training in the mining industry of Ghanaians; and
  • in the case of conversion from a previous reconnaissance licence or prospecting licence, a certified copy of the licence.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.3
What fees and other charges are incurred in obtaining a mining right?
Ghana

Answer ... These include the following:

  • the incorporation fees for setting up the company and the fees for meeting the minimum capital requirements, as provided for by the Ghana Investment Promotion Centre;
  • the application fees payable to the Minerals Commission for the grant of a licence or any extension; and
  • the environmental permit fees to be paid to the Environmental Protection Agency

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.4
What is the duration of a mining right? What is the process for renewal?
Ghana

Answer ... A mining right or lease shall be for an initial term of 30 years or a lesser period that may be agreed with the applicant. The area in respect of which the mining lease may be granted shall not be less than one block or more than 300 contiguous blocks, each having a side in common with at least one other block which is the subject of the grant. The holder of a mining lease may, in the three months before the expiration of the initial term of 30 years, apply to renew the lease for a further period of up to 30 years in respect of all or any number of contiguous blocks which were the subject of the lease in the first instance and in respect of all or any of the minerals that are the subject of the lease.

An applicant for the application of renewal of a mining lease must provide the following:

  • a certified copy of the mining lease;
  • the cadastral coordinates delineating the area that is the subject matter of the application for exclusion, in the case of reclamation in the perimeter of the original polygon;
  • a comprehensive technical and financial report in respect of the expired term and a programme of mining operations for the proposed extension, including financial particulars, prepared according to the Minerals Commission’s guidelines;
  • annual reports of the applicant for the previous two years, including audited accounts;
  • the particulars of the qualifications and experience of the manager and other members of the technical team in charge of the mining operations, in case of a change in the team;
  • the particulars of the applicant’s proposals with respect to the employment and training in the mining industry; and
  • evidence of payment of the applicable fees.

If the application for renewal meets the above requirement, the application shall be subject to internal evaluation and consideration by the Minerals Commission, which will either grant the extension or reject the application for renewal.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.5
Who can own mining rights in your jurisdiction? Do specific requirements or restrictions apply to foreign operators?
Ghana

Answer ... Mineral rights are granted to private parties (whether Ghanaians or foreigners), granting them the right to engage in mining activity within the designated area. In the Ghanaian mining industry, there is no specific requirement for a foreign entity or person to have a Ghanaian partner. However, small-scale mining is exclusively reserved for Ghanaians. Aside from this exception, there is no distinction (discrimination) in the application of the law for the granting of mining rights that may be granted to a Ghanaian as against that that may be issued to a non-Ghanaian person or entity.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.6
Do any indigenous ownership requirements apply in your jurisdiction?
Ghana

Answer ... No, there is no requirement in the substantive laws and applicable regulations that a foreign entity have a domestic partner. However, the government of Ghana, under Section 43 of the Minerals and Mining Act, has a 10% carried interest in rights and obligations of the mineral operations, in respect of which the government shall not make a financial contribution. Additionally, the government is not precluded from further participation in the mineral operation through the acquisition of additional interest. The latter arrangement must be agreed upon by the private holder.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.7
What role does the state play in the mining industry in your jurisdiction?
Ghana

Answer ... The role of the state is to regulate the mining industry by sponsoring favourable laws and regulations and supervising the execution of mining agreements. Since the era of the Economic Recovery Programme in 1963, successive governments have engineered macro-economic policy reforms for the mining industry to boost investor interest and confidence in the mining sector. For instance, between 1984 and 1995, there were significant institutional development and policy changes that offered generous incentives to investors to reflect the new paradigm.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.8
Are there requirements for the government to enter into a mining development (or similar) agreement in addition to the licences/permits? When is this required or available?
Ghana

Answer ... Yes. The government can enter into mining development through:

  • the exercise of a pre-emption right;
  • the acquisition of a 10% carried interest; and
  • the acquisition of a special share.

Pre-emption right: Under a pre-emption right, the government, through the minister of lands and natural resources, has the right to buy all minerals raised, won or obtained in Ghana, and from any area covered by territorial waters, the exclusive economic zone or the continental shelf, and products derived from the refining or treatment of these minerals. The government, under the Minerals and Mining Act, may, by an executive instrument, appoint a statutory body to act as its agent for the exercise of the right of pre-emption.

Carried interest (10%): Where a mineral right is granted for the mining or exploitation of a named mineral, the government shall be entitled to a 10% carried interest in the rights and obligations of the mineral operations, in respect of which the government shall not make a financial contribution. Notwithstanding the initial 10% carried interest held by the government, nothing precludes the government from acquiring further participation in the mineral operations that may be agreed with the holder.

Acquisition of special share: Under the special share acquisition principle, the minister may, by notice in writing to a mining company, require the mining company to issue to the state a special share by whatever name called in the company, for no consideration. The special share shall constitute a separate class of shares and shall have the rights that shall be agreed between the minister and the company.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.9
Can mining rights be transferred? If so, how and subject to what consents? Do any restrictions or taxes apply to direct or indirect transfers?
Ghana

Answer ... Yes, under the Minerals and Mining Act, the holder of a mineral right shall not, in whole or part, transfer, assign, mortgage or otherwise encumber the mineral right without the prior approval in writing of the minister of lands and natural resources, which approval shall not be unreasonably withheld or given subject to unreasonable conditions.

Where the minister does not give a written decision to the applicant within 30 days, the minister shall be mandated on the request from an applicant to give written reasons for the applicant. The minister is mandated by law to give reasons for refusal of the application within 14 days of receipt of the request.

A dispute arising as a result of an application to transfer, assign, mortgage or otherwise encumber a mineral right will be subject to alternative dispute resolution (ADR) mechanisms under the Minerals and Mining Act, with initial efforts geared reaching an amicable settlement.

Any instrument (eg, a deed of transfer) that purports to effectuate the transfer of a mineral right is subject to stamp duty charged on the consideration paid under the transfer instrument at a rate of up to 1%.

Also, any monetary gains arising from the assignment of a mineral right are considered as income of the mining company and therefore subject to corporate tax at a rate of 35%.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.10
Can security be taken over mining rights?
Ghana

Answer ... Yes, to the extent that any security taken or anticipated requires the approval of the minister of lands and natural resources. The Minerals and Mining Act provides that a mineral right cannot be fully or partially transferred, assigned, mortgaged or otherwise encumbered without the prior approval in writing of the minister, which approval shall not be unreasonably withheld or given subject to unreasonable conditions.

Where the minister fails to give written approval within 30 days of receipt of the application for approval, the minister must provide written reasons to the applicant within 14 days of receiving a request to do so.

A dispute between the minister and an applicant in respect of a decision to withhold approval shall be referred to the ADR mechanisms provided for under the Minerals and Mining Act and any other enactment in force for the resolution of disputes.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
4.11
What provisions apply with regard to closure or abandonment of a mining right?
Ghana

Answer ... The Minerals and Mining Act and the Minerals and Mining (General) Regulations make adequate provision for the suspension or abandonment of a mineral right. They provide that where a holder of a mining lease proposes to suspend or discontinue mining operations, the holder must prepare, to the satisfaction of the Minerals Commission, an accurate plan of the mining operations as at the time of discontinuance or suspension, and must submit that plan to the Minerals Commission in accordance with the law before the mining operations are discontinued or suspended.

The Minerals and Mining Act requires that the holder of a mining lease notify the minister three months in advance where it proposes to suspend production from the mine, giving reasons for the suspension. Production may be suspended for a maximum 12 months; the holder may apply in writing to the minister for an extension of this period for up to a further 12 months.

Where the suspension, curtailment or discontinuance of mining operations is approved, the Minerals Commission may grant, on behalf of the minister, a certificate of suspension, subject to the conditions determined by the minister. A certificate of suspension obtained through fraud or misrepresentation is void, and the lease shall be revoked without prejudice to any penalty specified in the regulations.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
5.
Surface rights
5.1
Does the law of your jurisdiction distinguish between mining rights and surface rights? If so, how does an owner of mining rights acquire surface rights?
Ghana

Answer ... There is no distinction in law between mining rights and surface rights in Ghana. The grant of a mineral right under Ghanaian law gives the holder of the mineral right authority over the land. It grants the mineral rights holder specific surface rights depending on the type of mineral rights granted under Ghanaian laws and regulations.

The holder of a reconnaissance licence has the exclusive right to carry on reconnaissance in the reconnaissance area for minerals, with the attached rights to enter the land and erect camps or temporary buildings thereon.

Also, the holder of a prospecting licence may engage in any other activity ancillary or incidental to prospecting. The holder of a prospecting licence has the right to make boreholes and excavations that may be necessary for prospecting purposes.

In contrast, the holder of a reconnaissance licence is prohibited from engaging in drilling or excavation as it pertains to the holder of a prospecting licence.

The holder of a mining lease has the right to enter the land that is the subject of the mining lease to erect equipment, plant and buildings for mining, transporting, dressing, treating, smelting or refining the specified minerals recovered by the holder during the mining operations. The holder is also permitted to stack or dump a mineral or waste product as approved in its environmental impact statement, and to conduct incidental or ancillary activities.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
5.2
Where surface rights are acquired, what are the operator’s rights and obligations as regards the landowner? And what are the landowner’s rights and obligations as regards the operator?
Ghana

Answer ... Where a mineral right is granted, the holder of the mineral right is mandated under the Minerals and Mining Law to provide the landowner with compensation. The owner or lawful occupier of any land that is subject to a mineral right is entitled to and may claim from the holder of the mineral right compensation for the disturbance of his or her rights as the lawful occupier. A claim for compensation shall be copied to the minister of lands and natural resources and the government agency responsible for land valuation. The amount of compensation shall be determined by agreement between the parties. If the parties are unable to reach agreement as to the amount of compensation, the matter shall be referred by either party to the minister, who will determine the compensation payable by the holder of the mineral right, in consultation with the land valuation department of the Lands Commission. The minister will ensure that inhabitants who prefer to be compensated by way of resettlement as a result of being displaced by a proposed mineral operation are settled on suitable alternative land, with due regard to economic wellbeing and social and cultural value, and that the resettlement is carried out in accordance with the relevant town planning laws.

The landowner, on the other hand, owes the mineral right holder certain obligations. The landowner may not erect a building or structure in the mining area without the consent of the holder of the mining lease or, if such consent is unreasonably withheld, without the consent of the minister. Also, the landowner may not upgrade to a higher-value crop within the mining area without the consent of the holder of the mining lease, or if such consent is unreasonably withheld, without the consent of the minister of lands and natural resources.

However, notwithstanding the above, the landowner shall retain the right to graze livestock on or to cultivate the surface of the land if this does not interfere with the mineral operations in the area.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
5.3
Please give an overview of the process for any mandatory acquisition of surface rights (eg, process and time to enforce).
Ghana

Answer ... The 1992 Constitution provides for the compulsory or mandatory acquisition of property by the state, inclusive of surface rights, where the acquisition or possession is necessary in the interests of defence, public safety, public order, public health, town and country planning or the development or utilisation of property in such a manner as to promote the public benefit.

Compulsory acquisition of property by the state under the Constitution must be made under a law which provides for prompt payment of fair and adequate compensation, and a right of access to the High Court by anyone that has an interest in or right over the property, whether direct or on appeal from any other authority, for the determination of its interest or right and the amount of compensation to which it is entitled.

The Minerals and Mining Act of Ghana provides for the mandatory acquisition of surface rights. Once a mineral right is granted, the right of the previous landowner to the surface ceases. The landowner is immediately expected to be adequately compensated by the mineral right holder. The compensation package under the act must be prompt and adequate. The compensation to which the landowner or lawful occupier may be entitled may include compensation for:

  • deprivation of the use of a particular use of the natural surface of the land or part of the land;
  • loss of or damage to immovable properties;
  • in the case of land under cultivation, loss of earnings or sustenance suffered by the owner or lawful occupier, having due regard to the nature of its interest in the land; and
  • loss of expected income, depending on the nature of crops on the land and their life expectancy.

However, no claim for compensation arises, whether under the Minerals and Mining Act or any other act, for the following;

  • in consideration for permitting entry to the land for mineral operations;
  • in respect of the value of a mineral in, on or under the surface of the land; or
  • for loss or damage for which compensation cannot be assessed according to the legal principle in monetary terms.

The compensation must be promptly paid to the landowner, and in any event within two months of the landowner’s livelihood being affected. A landowner who is dissatisfied with the terms of compensation offered by the holder of a mineral right or as determined by the minister shall have recourse to the High Court by way of review of the compensation package determined by the minister under the Minerals and Mining Act.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
5.4
Are any native title issues applicable, either at the exploration licence stage or when a mining right is issued?
Ghana

Answer ... There are no native title issues applicable to mining operations either at the exploration stage or for the duration of the mining lease, aside from the mandatory requirements that:

  • mining activities be conducted responsibly, taking into consideration the lives of residents in the surrounding areas;
  • prompt and adequate compensation be paid to residents affected by the mining; and
  • the lawful owner be allowed to graze livestock on or cultivate the surface of such land insofar as this does not interfere with the rights of the mineral holder in the mining area.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
5.5
Are any other rights needed to use the land (eg, zoning permissions or planning requirements)?
Ghana

Answer ... Yes, a water resources right is required to use the land under Ghanaian law. All water resources are vested in the state, and not the owner of the surface right or the holder of the mineral right. It is therefore incumbent on the holder of a mineral right to secure a water use right for water resources falling within the mining area, in order to use those water resources. The Water Resources Commission of Ghana issues water use permits.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
6.
Environmental issues
6.1
What environmental authorisations are required to undertake prospecting, exploration and mining activities in your jurisdiction? Do these vary depending on the type of mineral or the location of the activity?
Ghana

Answer ... The Environmental Protection Agency (EPA) is responsible for ensuring that environmental safety precautions are observed by mineral rights holders during the mining phase. The EPA was established under the EPA Act. In accordance with Section 18 of the Minerals and Mining Act and the Environmental Assessment Regulations 1999 (LI 1652), the holder of a mineral right requires an environmental permit from the EPA in order to undertake any mineral operations. The Environmental Assessment Regulation sets out the main legal framework used by the EPA to regulate and monitor mineral operations.

The regulation requires the applicant to prepare a scoping report setting out the scope or extent of the environmental impact assessment to be carried out, and includes a draft term of reference which indicates the essential issues to be addressed in the environmental impact statement. The holder of a mineral right which is granted an environmental permit must submit an annual environmental report in respect of the mineral operations to the EPA.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
6.2
What environmental obligations must the operator observe while the mine is operational?
Ghana

Answer ... An operator must observe environmental obligations relating to water pollution, nature/ecological conservation, air pollution, noise and vibration, soil contamination, changes in social cultural and economic patterns. At the exploration level, companies register and, upon review by the EPA, are granted permits to enable them to operate. An environmental permit is required even for small-scale mining licences. A preliminary environmental assessment or an environmental impact assessment is carried out to obtain an environmental permit, depending on the anticipated level of impact of the mining operations to be carried out.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
6.3
What environmental obligations must the operator observe in relation to closure of the mine?
Ghana

Answer ... Mining operators must submit reclamation plans to the EPA and are also mandated to post reclamation bonds. The reclamation bonds are based on the reclamation plans submitted, inclusive of the work plan for reclamation. The reclamation plan must consider issues relating to nature/ecological conservation, water pollution and noise pollution.

Upon termination of a mineral right, the holder of a mineral right is mandated to deliver the following to the minister of lands and natural resources or as the minister may direct:

  • the records which it is obliged to maintain by law;
  • the plans and maps of the area covered by the mineral right; and
  • other documents – including in electronic format, if available – that relate to the mineral right.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
6.4
What are the potential consequences of breach of these requirements – both for the operator itself and for directors, managers and employees?
Ghana

Answer ... Persons and individuals that flout the environmental requirements are liable to a fine or imprisonment for a term not exceeding one year, or both.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
6.5
Which bodies are responsible for enforcement of environmental obligations?
Ghana

Answer ... The EPA, the Ministry of the Environment, the Ministry of Lands and Natural Resources, the Forestry Commission, and the Water Resources Commission all play key roles in the enforcement of environmental regulations in the mining sector.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
6.6
What is the regulators’ general approach in regulating the mining sector from an environmental perspective?
Ghana

Answer ... The Minerals Commission takes environmental regulation very seriously. The regulators’ general approach is evinced in Ghana’s Mineral and Mining Policy. The environmental regulation objective is “to achieve a socially acceptable balance, within the environmental regulatory framework, between mining and the physical and human environment and to ensure that all participants in the mining sector observe internationally accepted standards of health, mine safety, and environmental protection”.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
7.
Health and safety
7.1
What key health and safety requirements apply to operators in your jurisdiction?
Ghana

Answer ... The key requirements are mainly set out in:

  • the Minerals and Mining Act;
  • the Minerals and Mining (Health, Safety, and Technical) Regulations 2012 (LI 2182); and
  • the Workmen’s Compensation Act 1987 (PNDCL 187).

The holders of reconnaissance licences and prospecting licences must submit to the Inspectorate Division of the Minerals Commission an exploration operating plan in accordance with Regulations 6 and 7 of the Minerals and Mining (Health, Safety, and Technical) Regulations, which must be approved by the Inspectorate Division and updated every year. The plan must contain, among other things:

  • a detailed description of planned activities;
  • a detailed time schedule;
  • the equipment to be used;
  • a detailed reclamation plan; and
  • a detailed budget of planned operations.

The holders of mining leases must submit to the Inspectorate Division of the Minerals Commission a mining operating plan in accordance with Regulations 8 and 9 of the Minerals and Mining (Health, Safety, and Technical) Regulations. The plan must contain, among other things, a detailed description of:

  • the mining methods;
  • the processing procedures;
  • the methods for handling reagents, chemicals, fuel and explosives, in accordance with the Minerals and Mining (Explosives) Regulations (LI 2177);
  • the methods for dealing with waste rock and disposal of tailings;
  • waste management processes;
  • mine infrastructure; and
  • the environmental aspects associated with the proposed mine, including at a minimum:
    • an estimate of the quantity of water to be used and pollutants that may enter receiving waters;
    • a detailed design for the impoundment, treatment or control of runoff water and drainage from workings to reduce soil erosion and sedimentation, and to prevent the pollution of receiving waters; and
    • a description of measures to be taken to prevent or control fire, soil erosion, subsidence, pollution of surface and groundwater, pollution of air, damage to fish or wildlife or other natural resources and hazards to public health and safety.

The owners and managers of mines must submit to the Inspectorate Division an emergency response plan in accordance with Regulation 11 of the Minerals and Mining (Health, Safety, and Technical) Regulations which should be capable of being implemented whenever an emergency arises at the mine. The plan must:

  • contain a description and assessment of emergency scenarios and risks;
  • provide for the establishment of an emergency coordination centre;
  • provide for emergency notification procedures and communication systems, equipment and resources, and scenarios and response procedures; and
  • provide for:
    • clean-up, remediation and a return to normal operations;
    • the training of staff; and
    • periodic emergency and evacuation drills of staff.

The owners or managers of mines must also submit monthly or quarterly returns to the chief inspector of the Minerals Commission in accordance with Regulation 28 of the Minerals and Mining (Health, Safety, and Technical) Regulations. The returns must include an accident report, an occupational health report and an environmental report.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
7.2
What reporting requirements apply with regard to mining accidents in your jurisdiction?
Ghana

Answer ... Under Regulations 26 and 27 of the Minerals and Mining (Health, Safety, and Technical) Regulations, the owners or managers of mines must report accidents and dangerous occurrences relating to the operations in the mine to the chief inspector of the Minerals Commission.

Accidents that must be reported include:

  • loss of life;
  • fractures to a person’s skull, limbs or spine;
  • electric shocks or burns; and
  • injuries to two or more persons.

Dangerous occurrences that must be reported include:

  • explosions caused by gas;
  • explosions caused by electricity;
  • the uncontrolled initiation of explosives;
  • an outbreak or occurrence of fire;
  • a rock burst;
  • the flooding of a portion of the underground workings of the mine; or
  • a case of unconsciousness arising from heatstroke or inhalation of fumes or poisonous gas.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
7.3
What are the potential consequences of breach of these requirements – both for the operator itself and for directors, managers and employees?
Ghana

Answer ... According to Regulation 56 of the Minerals and Mining (Health, Safety, and Technical) Regulations, anyone that contravenes the regulations is liable to a fine of up to $10,000 in the case of a body corporate, partnership, cooperative, association or group and of up to $5,000 in the case of an individual.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
7.4
What best practices in relation to health and safety should operators consider adopting in your jurisdiction?
Ghana

Answer ... Operators should adopt the practices provided for in the Minerals Commission Act and the Minerals and Mining (Health, Safety, and Technical) Regulations, as well as international best practices.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
7.5
Which bodies are responsible for enforcement of health and safety obligations?
Ghana

Answer ... The Minerals Commission of Ghana.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
7.6
What is the regulators’ general approach in regulating the mining sector from a health and safety perspective?
Ghana

Answer ... The Minerals Commission takes matters of health and safety very seriously. Its health and safety objectives are set out succinctly in the Minerals and Mining Policy as follows:

  • to protect the physical environment;
  • to protect mining workers; and
  • to protect the general public.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
8.
Processing, refining and export
8.1
What requirements and restrictions apply with regard to the processing or refining (beneficiation) or minerals?
Ghana

Answer ... The requirements are set out in the Minerals and Mining Act.

Upon the grant of a mining lease, pursuant to Section 46 of the Minerals and Mining Act, an operator has the right, among other things, to erect equipment, plant and buildings to refine the specified minerals it recovers during the mining operations.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
8.2
What requirements and restrictions apply to the export of minerals?
Ghana

Answer ... The requirements are set out in the Minerals and Mining Act and the Minerals and Mining (General) Regulations.

Section 6 of the Minerals and Mining Act provides that no one may export, sell or otherwise dispose of a mineral without a licence.

Regulation 3 of the Minerals and Mining (General) Regulations sets out the following conditions for the grant of a licence to export minerals in Ghana:

  • The application must be accompanied by a refining contract and a sales and marketing agreement.
  • The holder of the licence to export must provide to the Minerals Commission the particulars of the quantity and grade of the mineral to be shipped and access for samples to be taken prior to shipment of the minerals.
  • The holder of the licence must, within 30 days of the shipment, submit to the Minerals Commission certified true copies of the refinery returns.
  • The holder of a licence to export must also submit monthly and annual returns to the Minerals Commission.

Regulation 5 of the Minerals and Mining (General) Regulations provides that the shipment of diamonds must accord with the Kimberley Process Certificate Act (652/2003).

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
9.
Taxes and royalties
9.1
What taxes, royalties and similar charges are levied on mining operators in your jurisdiction? How are these calculated?
Ghana

Answer ... Companies engaged in mining in Ghana must pay corporate tax at a rate of 35% on their profit. The year of assessment is the calendar year.

Allowable deductions include:

  • capital allowance for the year;
  • bad debts;
  • tax losses brought forward for a specified number of years;
  • repairs and improvements under certain conditions;
  • losses incurred in the realisation of business or investment assets and liabilities;
  • incentives for hiring recent graduates; and
  • financial costs under certain conditions.

Deductions not allowed include domestic and excluded expenditure.

Companies engaged in mining in Ghana subject to any stability agreement with the government are subject to a mineral royalty rate of 5% of the total revenue earned from the minerals obtained from mining operations.

The holder of a mining lease must pay annual ground rent to the owner of the land or the land owner’s successors and assignees in accordance with the Minerals and Mining (Ground Rent) Regulations 2018 (LI 2357). Ground rents in respect of stool land in Ghana must be paid to the Office of the Administrator of Stool Land. The ground rent is set at a rate of $18.57 per acre.

Other levies – such as stamp duty, business operating fees and property rates – are also payable by the holders of mining leases.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
9.2
Are any tax incentives available for mining operators?
Ghana

Answer ... Yes. These include the following:

  • Benefits such as on-site accommodation provided by an employer engaged in mining are generally not taxable.
  • There are special import duty exemptions in relation to plant, machinery, equipment and accessories strictly for mining operations for holders of mining leases.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
9.3
What other strategies might mining operators consider to mitigate their tax liabilities?
Ghana

Answer ... The holders of mining leases in Ghana may be entitled to enter into stability agreements with the government so that, for a period not exceeding 15 years from the date of the agreement, the holder will not be affected negatively by any new enactments or laws which may modify the royalties, taxes and other similar taxes.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
9.4
Have there been any significant changes to the taxation rates applicable to mining companies in the last three years?
Ghana

Answer ... No.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
10.
Disputes
10.1
In which forums are mining disputes typically heard in your jurisdiction?
Ghana

Answer ... The forum will depend on the type of dispute that arises.

Where a dispute arises between the holder of a mineral right and a non-Ghanaian, the parties must first attempt to resolve the matter amicably. If this fails, the dispute may be resolved through any of the following mechanisms:

  • in accordance with international mechanisms for the resolution of investment disputes as agreed by the parties; or
  • through arbitration in accordance with the following:
    • the framework of a bilateral or multilateral agreement on investment protection to which Ghana and the country of which the holder of the mineral right is a national are parties; or
    • the arbitration rules of the United Nations Commission on International Trade Law.

Where a dispute arises between the Ghanaian holder of a mineral right and the government of Ghana in respect of a matter expressly stated under the Minerals and Mining Act, the dispute must first be referred for resolution. If it is not resolved amicably within 30 days of the dispute arising or such longer period as agreed between the parties, the dispute may be submitted by either party to arbitration for settlement in accordance with the Alternative Dispute Resolution Act (798/2010) or any other enactment of such nature that may be in place.

In addition, each agreement granting a mineral right will include provisions on the method for resolving disputes that may arise under the agreement.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
10.2
What issues do such disputes typically involve? How are they typically resolved?
Ghana

Answer ... Disputes in the mining industry in Ghana include labour disputes, environmental disputes and disputes between the holders of mineral rights and subcontractors.

They are resolved either by the courts of Ghana or through arbitration.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
10.3
Have there been any recent cases of note?
Ghana

Answer ... An Australian mining company recently served notice of intent to proceed with international arbitration against the government of Ghana.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
11.
Trends and predictions
11.1
What changes have there been to the mining landscape in your jurisdiction in the last five years?
Ghana

Answer ... A ban on small-scale mining was recently introduced due an increase in illegal mining activities. However, it has since been lifted.

In 2018 the Ministry of Lands and Natural Resources of Ghana communicated to the Ghana Chamber of Mines the intention of the government of Ghana to exercise its pre-emption rights pursuant to Section 7 of the Minerals and Mining Act to acquire 30% of all gold mined in Ghana. The Ghana Chamber of Mines is currently negotiating with the government of Ghana to address this issue.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
11.2
How would you describe the current mining landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
Ghana

Answer ... The mining sector in Ghana is a lucrative one and there are many opportunities for investment.

No known new developments are anticipated in the next 12 months.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP
12.
Tips and traps
12.1
What are your top tips for mining operators in your jurisdiction and what potential sticking points would you highlight?
Ghana

Answer ... Prospective mining operators should seek legal advice in Ghana from lawyers with the requisite knowledge of mining law before making an application to obtain for mineral rights. This is especially necessary where a foreign entity seeks to enter into a joint venture with a Ghanaian company that has a mineral right in Ghana.

Mining operators should take cognisance of the fact that the Minerals Commission requires some level of local content in the operations of holders of mineral rights. This is espoused more particularly in the Minerals and Mining (General) Regulations.

For more information about this answer please contact: David Yaw Danquah, Esq. from Legalstone Solicitors LLP