PETITION

REVOCATION OF ENVIRONMENTAL PROTECTION (MINING IN

FOREST RESERVES) REGULATION L.I 2462

FROM:
COALITION OF CIVIL SOCIETY ORGANISATIONS
REPRESENTED BY: MUSTAPHA SEIDU
Tel: 0248930693
Email: mseidu@ndfwestafrica.org

TO:
RT HON. ALBAN SUMANA KINGSFORD BAGBIN
THE SPEAKER OF PARLIAMENT
PARLIAMENT HOUSE
ACCRA-GHANA

CC:
1. MAJORITY LEADER IN PARLIAMENT
2. MINORITY LEADER IN PARLIAMENT

DATED: 20TH NOVEMBER 2023

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1.0 SPEAKER OF PARLIAMENT ACTION REQUIRED
The Coalition of CSOs respectfully requests the Rt. Hon. Speaker to cause a revocation of
the so-called “Environmental Protection (Mining in Forest Reserves) Regulation L.I 2462
since the said L.I offends provisions in the constitution and other laws on the protection of
forests and has the potential to reverse all the gains and commitments Ghana has made in
forest protection and the fight against climate change.

2.0 BACKGROUND
2.1 The Environmental Protection (Mining in Forest Reserves) Regulations, 2022
(L.I.2462) was passed on the 23rd of June 2022 in the exercise of the powers
conferred on the Minister responsible for the Environment by Section 62(1) of the
Environmental Protection Agency Act, 1994 (Act 490).1 The purpose of the L.I. is to
provide for mining activities in forest reserves and other related matters.2

2.2 Sir, the 1992 Constitution of Ghana imposes a duty on the government to take
appropriate measures to protect and safeguard the national environment for
posterity, thereby binding the government to ensure the preservation of the
environment for Ghanaians and, more so, those unborn.3 All Ghanaian citizens are
similarly duty-bound to protect and safeguard the environment.4 Regrettably, the
Constitution does not define the environment. However, it may be reasonably inferred
that it should include forests, water resources, and wildlife that are essential for the
survival of humankind.5

2.3 The Constitution also vests the ownership of minerals in their natural state in, under,
or within the territory and seas of Ghana in the President, who holds it in trust for the
people of Ghana. This represents the general framework for Ghana's ownership and
control of natural resources. Thus, much like minerals, forests throughout the country,
unless privately owned, are vested in the president of Ghana on behalf of and in trust
for the stool and community concerned.

2.4 To further the exploitation of mineral resources, mineral rights are granted through
prospecting licenses, reconnaissance licenses, and mining leases by the Ministry of
Lands and Natural Resources in consultation with the Minerals Commission. Other
institutions that significantly impact mining resources include the Environmental
Protection Agency (EPA), responsible for ensuring compliance with environmental
protection laws, and the Forestry Commission, responsible for conserving Ghana's
forest and wildlife resources.

1
Preamble, Environmental Protection (Mining in Forest Reserves) Regulations, 2022 (L.I.2462).
2
Regulation 2, Environmental Protection (Mining in Forest Reserves) Regulations, 2022 (L.I.2462)
3
1992 Constitution, article 36(9).
4
1992 Constitution, Article 41(k).
5
DL Johnson and others, ‘Meanings of Environmental Terms’ (1997) 26 Journal of Environmental Quality
581 <http://doi.wiley.com/10.2134/jeq1997.00472425002600030002x> accessed 16 September 2023.

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2.5 Rt. Hon. Speaker, L.I. 2462 as presently passed by Parliament, provides, among other
things, statutory procedures for mining in forest reserves. Forest reserves are, by law,
created over forest areas with a primary objective to protect them from destruction.6
Thus, L.I 2462 on its face, presents the opportunity for miners to destroy forest
reserves, which were specifically created to ensure the protection of the forest and
wildlife therein.

2.6 The passage of L.I. 2462 was done without proper stakeholder consultation. Also,
the rights that can be granted under the licensing regime contained in L.I 2462 can
potentially render significant efforts made at reducing deforestation, biodiversity loss,
pollution, and climate change nugatory. LI 2462 flies in direct contradistinction with
previous government policy on mining in forest reserves as contained in the 2018
‘Environmental Guidelines for Mining in Production Forest Reserves in Ghana’ and the
2012 Forest and Wildlife Policy.

3.0 CAPACITY OF EPA TO REGULATE MINERAL AND FOREST RESOURCES

3.1 The regulation of mining in forest reserves by the Environmental Protection Agency
(EPA) through L.I. 2462 raises a serious constitutional concern. The 1992
Constitution of Ghana allocates the responsibility for regulating and managing natural
resources and co-ordinating related policies to the Natural Resource Commissions
established either by the Constitution or by the Parliament of Ghana.7 However, L.I.
2462 effectively empowers the EPA to oversee and control the utilization of mineral
resources. This is an encroachment on the mandate of the Minerals Commission, and
it is beyond the scope of the EPA's designated functions in its establishment
legislation.

3.2 The EPA, as established by the Environmental Protection Agency Act, 1994 (Act 490),
is not a natural resource commission. While the EPA has an extensive mandate, it
does not encompass regulation and management of natural (specifically, forest or
mineral) resources. This specific role is designated to the Forestry and Minerals
Commissions, respectively. The passing of L.I. 2462 by the EPA represents a clear
overreach on its part, effectively supplanting the legitimate functions of the Forestry
and Minerals Commissions and thereby violating the constitutional directives
regarding managing natural resources in Ghana.

3.3 Additionally, L.I. 2462 introduces several provisions that constitute regulation and
management of mineral resources. This includes provisions on granting mineral
rights,8 restrictions on mining in prohibited areas,9 the President's discretionary
authority to authorize mining in globally significant biodiversity areas, and the
establishment of criminal offenses to penalize violations. While these provisions may
have their merits, the fundamental issue remains that they are being implemented by

6
Section 2(d) of Forests Act, 1927 CAP 127.
7
Article 269(1) of Constitution 1992, Ghana.
8
Regulation 3(1) of Environmental Protection (Mining in Forest Reserves) Regulations 2022, L.I. 2462.
9
Ibid.

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 an agency, the EPA, that lacks the constitutional authority and mandate to manage
natural resources. This infringement on constitutional principles and established
mandates is a basis for questioning the legitimacy of the L.I.

4.0 LACK OF AUTHORITY BY THE EPA FOR THE ENACTMENT OF L.I. 2462

4.1 L.I. 2462, purportedly enacted under the authority of the Environmental Protection
Act, 1994 (Act 490), lacks legislative foundation, rendering it unconstitutional and
an overreach of the Minister's authority. Upon scrutiny, it becomes apparent that Act
490 fails to grant the Minister the necessary authority to regulate the specific
activities outlined in L.I. 2462. As the name implies, a Legislative Instrument must
find its legal foundation within legislation. The constitution or statute must
unequivocally grant the power to formulate regulations, a crucial prerequisite that L.I.
2462 lacks. Without such clear authorization, any attempt by an administrative officer
or body to craft regulations could be seen as an unconstitutional usurpation of the
legislature's functions, thereby undermining the foundational principle of the
separation of powers.

4.2 Regulation 2 of L.I. 2462 provides the raison d’etre of the Regulations, which include
managing mining in forest reserves; efficient use and protection of natural resources;
effective stakeholder consultation and participation on issues relating to mining in
forest reserves; effective and efficient administration and disbursement of mineral
royalties; and maximization of benefits to the local community from mining in forest
reserves.

4.3 A conspicuous lack of harmony emerges from a rigorous analysis and comparison of
the primary objectives outlined in L.I. 2462 with the delineated scope of activities
permissible for regulation under the provisions of section 62(1). This discordance not
only calls into question the legitimacy of section 62(1) as the legal foundation for the
promulgation of L.I. 2462 but also raises profound doubts about the instrument's
overall validity.

4.4 If L.I. 2462 had primarily focused on setting environmental development and
rehabilitation standards, it might have found some justification under Section 62(a)
of Act 490. However, upon scrutiny, it becomes evident that the standard-setting
aspect is secondary to the broader objectives of regulating mining, promoting
stakeholder participation, and facilitating mineral royalty payments. In essence, L.I.
2462 attempts to achieve far more than what a standard-setting Regulation
permitted under section 62(a) should encompass.

4.5 The absence of legislative backing significantly undermines the instrument's legal
basis, raising considerable doubts about its legitimacy. Consequently, it is highly
plausible that a court would rule in favor of nullifying L.I. 2462 due to its inherent
lack of legislative support, thereby reaffirming the importance of adherence to
established legal frameworks and principles.

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5.0 USURPATION OF UNDELEGATED EXECUTIVE AUTHORITY BY THE EPA

5.1 Rt. Hon. Speaker, Ghana’s forest reserves are created by the President through
Executive Instruments.10 Once created, a forest reserve is managed by the Forestry
Commission on behalf of the government. The President's power to declare land as
ceasing to exist as a forest reserve is exercised through an Executive Instrument.11

5.2 The key implication of this regulatory framework is that it is solely the President,
through an Executive Instrument, who possesses the authority to alter the rights and
characteristics associated with a forest reserve. Consequently, in the absence of an
Act of Parliament, only an Executive Instrument can modify the rights associated with
a forest reserve. Put differently, without an act of parliament or an executive
instrument, the legal protections granted to land classified as a forest reserve cannot
be overridden.

5.3 It's important to note that L.I. 2462 is a Legislative Instrument promulgated by an
administrative body (EPA), and it does not carry the legislative legitimacy required to
override the protections granted to forest reserves through an Executive Instrument.
While there may not be a specific judicial ruling or statutory provision addressing the
conflict between an Executive Instrument and a Legislative Instrument, existing case
law and legal principles make it abundantly clear that an L.I. cannot implicitly repeal
an E.I.

5.4 The distinction between an Executive Instrument and a Legislative Instrument is

crucial. Legislative Instruments, even when initiated by an executive body, are
fundamentally legislative in nature as they regulate conduct and must be presented
before Parliament for approval before taking effect.12 On the contrary, an Executive
Instrument does not undergo parliamentary scrutiny or require parliamentary
approval to become law. By design, they represent an exercise of executive authority.
Given this fundamental difference, the presumption of leges posteriores priores
abrogant13, which applies to conflicts between subsequent and prior legislation, does
not pertain to conflicts between an E.I. and an L.I.

5.5 Furthermore, due to the distinct nature of these competing forms of subsidiary
legislation (E.I. representing executive power and L.I. representing legislative power),
the doctrine of the separation of powers dictates that an L.I. cannot be employed to
amend an E.I. in the absence of explicit constitutional provisions, as it would be a
usurpation of executive power.

10
Section 16 of Forests Act, 1927 (CAP 157).
11
Section 19 of CAP 157.
12
Republic v Minister of Interior, Ex Parte Bombelli [1984-86] 1 GLR 204 – 219.
13
This is also referred to as the doctrine of implied repeal which is a concept that a later statute which is
repugnant to an earlier statute is deemed to abrogate the earlier one when both of them are on the same
subject matter. In other words, where the provisions of a later document are contrary to those of an earlier,
the earliest must be considered as repealed.

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5.6 The preceding arguments make it evident that the rules of statutory interpretation
that might allow L.I. 2462 to implicitly repeal an Executive Instrument creating a
forest reserve do not apply. Consequently, L.I. 2462 cannot diminish the protections
afforded to land classified as a forest reserve through an Executive Instrument. If L.I.
2462 cannot undermine these protections, it logically follows that it cannot sanction
mining activities within forest reserves, as such actions would be inconsistent with
the intended purpose and nature of these reserves.

5.7 Furthermore, even assuming arguendo that the analysis of the relationship between
E.I. and L.I. is disregarded, L.I. 2462 still lacks the authority to undermine the
statutory safeguards provided for forest reserves. This is because, although an E.I.
establishes the forest reserve, the protections and the associated offenses and
penalties are defined in acts of parliament. The Forests Act, 1927 (CAP 127) and
Forests Protection Act, 1974 (NRCD 273), outline the regulatory framework that
safeguards land designated as a forest reserve. The restrictions, including the penalty
system, are enshrined in these parliamentary Acts.

5.8 Rt. Hon. Speaker, as you may be aware, in Ghana, as per the legal hierarchy, an act of
parliament holds a higher status than subsidiary legislation. Therefore, it is essential
to emphasize that L.I. 2462 cannot implicitly revoke the safeguards for land
designated as a forest reserve, primarily because these protections are rooted in
legislative acts.

5.9 In conclusion, L.I. 2462 cannot authorize mining in forest reserves because the L.I.
lacks the legislative legitimacy to erode the protections conferred on land that is
classified as a forest reserve.

6.0 NATIONAL LEVEL POLICY CONTRADICTIONS OF L.I. 2462

6.1 Ghana’s Forest and Wildlife Policy (2012) explains that Ghana’s Production Forest
Reserves (about 80 percent of the reserves) are for timber exploitation while
Protection Forest Reserves (about 20 percent) were established for conservation
purposes14. The Policy makes no mention of these reserves being set aside for mining
purposes. The purpose of Strategic Direction 1.1 of the policy is to ensure Ghana’s
forest reserves are managed in line with national policies and legislation as well as
international treaties that Ghana has ratified, while Policy Strategy 1.1.1c is to
“Reduce as much as possible the prospecting and mining of mineral resources in
gazetted forest reserves”. Providing a timeline for ending mining in forest reserves,
Ghana’s Forestry Development Master Plan (2016-2036) requires “No new permits
to be issued to mining companies” by 2020 onwards to ensure that by 2036, “All
prospecting and mining of minerals in forest reserves will cease”. The L.I.2462
contradicts all these policies and plans for forests and wildlife because the purpose
of the L.I. is to provide for mining activities in forest reserves.15

14
Forest and Wildlife Policy (2012)
15
Regulation 2, Environmental Protection (Mining in Forest Reserves) Regulations, 2022 (L.I.2462)

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6.2 Ghana’s Land Policy requires that all efforts be made to prevent as much as possible
the destruction of the environment. It states, “To ensure the conservation of
environmental quality, no land with primary forest cover will be cleared for the
purpose of establishing a forest or tree crop plantation or mining activity”. Again, the
L.I. 2462 is inconsistent with this because it facilitates mining in forest reserves, which
are primary forest cover.

6.3 Ghana’s National Climate Change Policy recognizes that mineral exploitation and
mining are together key drivers of the increasing destruction of natural carbon sinks,
especially the forests, and are recognized as key challenges to Ghana’s climate change
mitigation and resilience building. Ghana’s Minerals and Mining Policy also recognizes
this challenge, stating, “The mining industry remains strongly committed to
addressing the urgent need to reduce greenhouse gas emissions significantly”.
Mining in forest reserves as facilitated by the L.I. 2462 is not consistent with the
recognitions or intentions of these policies.

6.4 Ghana’s Nationally Determined Contribution (2020-2030) under the Paris Agreement
of the UNFCCC identifies the mitigation co-benefits of “Nature-based solutions for
promoting eco-tourism as a means for enhancing biodiversity through forest
conservation”, and recognizes the importance of trees as an “adaptation measure
against the increasing number of extreme weather events”. Furthermore, recognizing
that mining in forest reserves is a direct driver of deforestation and degradation,
Ghana’s REDD+ Strategy identified strategic options for addressing such drivers that
include “improving regulation of mining activities” and “reducing the conversion of
all kinds of forests into other land uses”. The L.I. 2462 that facilitates mining in forest
reserves is not consistent with Ghana’s Nationally Determined Contribution and
REDD+ Strategy.

6.5 Ghana’s government has also signed several international conventions and
agreements that mean it has committed to protect and restore Ghana’s forests and
biodiversity. These include the Convention on Biological Diversity (CBD), the Global
Biodiversity Framework, and the United Nations Framework Convention on Climate
Change (UNFCCC). Facilitating mining in forest reserves through the L.I. 2462 is not
consistent with these commitments.

6.6 The government is also part of the LEAF Coalition and co-chair of the Forest and
Climate Leaders Partnership (FCLP). The former aims to halt deforestation by
financing large-scale forest protection, while the latter helps deliver COP26
commitments made by world leaders to halt and reserve forest loss and land
degradation by 2030 while promoting an inclusive rural transformation. The L.I. 2462
that facilitates mining in forest reserves is not consistent with these important
commitments.

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7.0 FORESTRY SECTOR IMPACTS OF L.I. 2462

7.1 Rt. Hon. Speaker, L.I. 2462 has opened the floodgates for institutionalized mining
in our forest reserves without restriction. Since its passage a year ago, eight (8)16
mining leases have been issued to mine forest reserves including three Globally
Significant Biodiversity Areas (GSBAs)17. Additionally, 15 mining lease
applications to mine in forest reserves are at various stages of approval 18. In some
of these areas, as much as 90% of the forest reserve has either been given out or
under consideration for approval. All these have happened within barely a year
after the passage of L.I. 2462.

7.2 All the forest reserves that are currently being managed by the Forestry Commission
and logged by timber companies are subject to the grant of mining leases under the
L.I. This represents the single most pervasive upfront to the relevance of the forestry
sector and an existential threat to the very foundation of forestry industries, the study
of Forestry as a profession in Ghana, and the relevance of the Forestry Commission
itself.

7.3 Investors in Ghana’s forest industries are mostly indigenous Ghanaians working to
improve Ghana’s economy. The growth of their investments – and hence their
contributions to Ghana’s economy and rural communities – are dependent on a
sustainable supply of local raw materials. Currently, 80-90% of the sector’s raw
materials come from Ghana’s natural forests, i.e. the forest reserves.

16
The eight forest reserved leased for mining and the companies with the Mining Right are i) Draw River Forest
Reserve and GSBA, ML-2/236, Betterland Ghana Ltd, (ii) Neung South Forest Reserve and GSBA, ML-2/229,
Kapsord Mining Ltd (iii) Boin Tano Forest Reserve and GSBA, APL-M-100, Unipower Mining Company Ltd, (iv)
Mamiri Forest Reserve, ML-2/230, Nana Ansah Resources Ltd, (v) Nkrabia Forest Reserve, ML-6/228, Hapic
Mining Ltd, (vi) Tano Anwia Forest Reserve, APL-M-101, Clean-Job Ghana, (vii) Anhwiaso Forest Reserve, ML-
LAYER/222, Koantwi Mining Company Ltd, (viii) Oda River FR, ML-6/238, Sam and Gyan Ltd
17
In recognition of their extraordinary biological importance, thirty (30) forest reserves have been re-
designated as Globally Significant Biodiversity Areas (GSBAs). Three of these where mining leases have been
granted for mining include i) Neung South Forest Reserve, ii) Boin Tano Forest Reserve, and iii) Draw River
Forest Reserve.
18
The 15 forest reserves where mining lease applications have been made in i) Anhwiaso Forest Reserve, ii)
Boin Tano Forest Reserve and GSBA, iii) Bonsa River FR, iv) Bonsam Bepo, v) Draw River Forest Reserve and
GSBA, vi) Kakum National Park, vii) Kwamisa FR, viii) Krokosue FR, ix)Mamiri Forest Reserve, x) Neung South
Forest Reserve and GSBA, xi) Nkrabia Forest Reserve, xii) Oda River FR, xiii) Tano Anwia Forest Reserve,
xiv)Tano Suraw Extension FR, xv) Totua Shelterbelt FR

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7.4 The area of the productive forest has declined significantly due to threats such as
bushfires, illegal mining, illegal logging, and illegal farming. Many companies in the
sector are already struggling to obtain sufficient raw materials to maintain
profitability. The L.I. 2462 poses a new and even greater risk, as more production
forest areas will not be available for timber industries19. The loss of Ghana’s timber
industries will have a significant and negative impact on Ghana’s economy and GDP,
especially rural jobs and economies.

8.0 CONCLUSIONS

Rt. Hon. Speaker, from the above, it is evident that L.I. 2462 is a bad law and has the
potential to reverse the gains on forest management and the fight against climate
change.

9.0 PRAYER
The coalition of CSOs and institutions respectfully requests, the Rt. Hon. Speaker to
cause the revocation of L.I 2462 to safeguard our forest reserves.

19
Adam, K.A. (2023) Understanding the Legislative Instrument (LI2462): Reflections from Forest Based
Industries. K.A. Adam, CEO of Ghana Timber Millers Organisation (GTMO).

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APPENDIX 1: LIST OF CIVIL SOCIETY ORGANISATIONS

1. NATURE AND DEVELOPMENT FOUNDATION

2. A ROCHA GHANA
3. OCCUPY GHANA
4. MEDIA COALITION AGAINST GALAMSEY
5. WACAM
6. OXFAM GHANA
7. GHANA YOUTH ENVIRONMENT MOVEMENT
8. ECO-CONSCIOUS CITIZENS
9. HEN MPOANO
10. GHANA ENVIRONMENT ADVOCACY GROUP
11. NORTHCODE
12. YOUTH ALLIANCE FOR GREEN GHANA
13. CONCERNED CITIZENS OF ATEWA LANDSCAPE
14. FACILITATING LEARNING OF WOMEN IN EMERGING REGIONS (FLOWER)
15. YOUTH VOLUNTEERS FOR THE ENVIRONMENT
16. TROPENBOS GHANA
17. KUMASI WOOD CLUSTER
18. CIVIC RESPONSE
19. CENTRE FOR AGROFORESTRY BUSINESS DEVELOPMENT (CABuD)
20. DOMESTIC LUMBER TRADE ASSOCIATION (DOLTA)
21. NEW GENERATION CONCERN
22. RIGHTS AND ADVOCACY INITIATIVES NETWORK (RAIN)
23. GHANA INSTITUTE OF FORESTERS (GIF)

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