Energy and natural resources lawLAND COMPENSATION &

RESETTLEMENT ISSUES IN MININGBy

RICHMOND OSEI-HWERE FACULTY OF LAW, KNUST

AGENDA Introduction

Forms of Land Acquisition

Compensation

Resettlement

INTRODUCTION 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.

INTRODUCTION (1) 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.

FORMS OF LAND ACQUISITION Land require for mining can be

acquired:

Compulsorily by the state

By agreement

Compulsory Acquisition 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.”

Compulsory Acquisition (1) Land may be acquired by the

President under: The State Lands Act, 1962 (Act 125)

The Administration of Lands Act, 1962 (Act 123)

Compulsory Acquisition (2) 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.

Compulsory Acquisition (3) 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.

Compulsory Acquisition (4) 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.

Acquisition By Agreement 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.”

Acquisition By Agreement (1) 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 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.

Who is entitled to 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.

Basis for determining and assessing compensation

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.”

Assessing Compensation

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.

Assessing Compensation (1)

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.

Assessing Compensation (2) 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

Assessing Compensation (3) 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.

Form of Compensation 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

Who pays for compensation? 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 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.

RESETTLEMENT (1) Under Section 74 of Act 703 the cost

of resettlement is to be borne by the mineral right holder.

THE END