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Social Legitimacy as the Unresolved Driver in Mining Conflicts: A Case Study of Ghana

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The Palgrave Handbook of Arbitration in the African Energy and Mining Sectors

Part of the book series: Palgrave Studies in Energy Transitions ((PSET))

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Abstract

The hazardous effects of mining and the lack of development create tension between mining companies and their host communities. This is despite the various initiatives, such as corporate social responsibility, which aim to ensure that local communities benefit from the mining sector. Consequently, there have been multiple cases in international arbitration due to disputes in the mining sector. The mining communities often argue that the government’s legal authorization to operate granted to the mining companies has failed to account for the needs of mining communities. Due to these challenges, host communities conclude that exploiting natural resources benefits mining companies alone. The provision of corporate social responsibilities has failed to give the mining companies the social legitimacy to operate. This chapter postulates a new mode of negotiating mining agreements to create an amicable relationship between mining communities and companies. Contracts for mineral exploitation have been executed between mining companies and governments without input from host communities. The chapter argues that negotiations without mining communities have failed to stop conflicts. The chapter’s contribution is that mining agreements must involve the mining communities as stakeholders, making them part of the decision-making process. Their involvement would minimize the community-company conflict as parties mutually agree on the community’s needs. The chapter advocates that developing host mining communities must be part of Ghana’s mining laws to boost social legitimacy.

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Notes

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  33. 33.

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  34. 34.

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  35. 35.

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  36. 36.

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  37. 37.

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  38. 38.

    See United Nations Declaration on the Rights of Indigenous People, Article 19, which states that “States shall consult and cooperate in good faith with indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

  39. 39.

    See International Labour Organisation Convention 169, Article 6 (1) (a), which states that “In applying the provision of this Convention: the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals.”

  40. 40.

    Kristi Disney Bruckner (note 22), 416

  41. 41.

    Kristy Disney Bruckner (note 22), 416, citing Alex Emery, Newmont Cutting Jobs at Suspended Peruvian Gold Project

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  43. 43.

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  46. 46.

    D. Olawuyi, ‘Extractive Industry Law in Africa (Springer, 2018)

  47. 47.

    ICMM (2015), ‘Mining in Ghana-What future can we expect?’, 9 available at https://www.icmm.com/website/publications/pdfs/mining-parterships-for-development/mining-in-ghana_what-future-can-we-expect [Accessed on 24 March 2022]

  48. 48.

    Gavin Hilson and Abigail Hilson, ‘Mining in Ghana: Critical Reflections on a Turbulent Past and Uncertain Future’ in Ernest Aryeetey and Ravi Kanbour (eds), The Economy of Ghana Sixty Years After Independence (Oxford University Press, 2017)

  49. 49.

    Aboka, Y. E. et al. (2018), ‘Review of Environmental and Health Impacts of Mining in Ghana’, Journal of Health and Pollution, Vol. 8 (17), 43–52

  50. 50.

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  51. 51.

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  52. 52.

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  53. 53.

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    Ofosu-Mensah (note 57), 015

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    Adomako-Kwakye, C. (2018), ‘Neglect of mining areas in Ghana: the case for equitable distribution of resource revenue’, Commonwealth Law Bulletin, Vol. 44 (4), 645. The article devotes a section that discusses the legal ownership of natural resources in Ghana and the implication of the constitutional provision which vest natural resources in Ghana in the President to hold same in trust for the people of Ghana.

  60. 60.

    Ibid, 645

  61. 61.

    Ibid, 645

  62. 62.

    See note 47.

  63. 63.

    Ibid

  64. 64.

    Adonteng-Kissi, O. and Adonteng-Kissi, B. (note 27), 200

  65. 65.

    Patel, K. et al. (2016), ‘Evaluating conflicts surrounding mineral extraction in Ghana: Assessing the spatial interactions of large and small-scale mining’, The Extractive Industries and Society, Vol. 3, 450. For more discussion on conflicts between Ghana’s large- and small-scale miners, see the following works; Hilson (2002), ‘An overview of land use conflicts in mining communities’, Land Use Policy, Vol. 19 (1), 65–73; Hilson and Yakovleva (2007), ‘Strained relations: A critical analysis of the mining conflict in Prestea, Ghana’, Political Geography, Vol. 26 (1), 98–119; Banchirigah (2008), ‘Challenges with eradicating illegal mining in Ghana: a perspective from the grassroots’, Resources Policy, Vol. 33(1), 29–38; and Aubynn A., ‘Sustainable solution or a marriage of convenience? The coexistence of large scale mining and artisanal and small-scale mining on the Abosso Goldfields concession in Western Ghana’, Resources Policy, Vol. 34 (1–2), 64–67, among others.

  66. 66.

    Patel, K. et al. (note 65), 452–453

  67. 67.

    Galamsey loosely refers to individuals who engage in illegal mining in forests, river beds, and concession of mining companies.

  68. 68.

    Patel, K. et al. (note 65), 452–453

  69. 69.

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  70. 70.

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  71. 71.

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  72. 72.

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  73. 73.

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  74. 74.

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  75. 75.

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  76. 76.

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  77. 77.

    Okoh, G.A. (note 73), 52

  78. 78.

    Andrew, J. S. (2013), ‘Potential application of mediation to land use conflict in small-scale mining’, Journal of Cleaner Production, Vol. 11, 117–130

  79. 79.

    Okoh, G. A. (note 73), 52

  80. 80.

    Gavin, T. et al. (2009), ‘Community-company relations in gold mining in Ghana’, Journal of Environmental Management, Vol. 90, 571–586

  81. 81.

    Andrew, J. S. (note 78), 117–130

  82. 82.

    Okoh, G. A. (note 73), 52. According to Okoh, some of the reported clashes are as follows: First, in 1994, AngloGold security with the military and the police killed three artisanal miners. Second, in 1996, the company suffered damage of over $10 million of company property during a violent clash between artisanal miners and the company and state security forces. Third, in 1997, AngloGold security was brutalized who set out their security dogs on 16 artisanal miners. Fourth, in 2000, artisanal miners burnt a poultry farm belonging to AngloGold and sold valuable items of the company and livestock. Fifth, in 2010, artisanal miners attacked and wounded two company security who went on patrol on the company’s concession. Sixth, in 2011, company security shot and killed artisanal miners. Seventh, in 2011, there was a massive demonstration against AngloGold for the arrest of 150 artisanal miners by the military and police which was violent. The narration reveals that despite the death of artisanal miners seeking to make ends meet, the operation of illegal mining is very rife in Ghana. The picture shows the unbalanced nature of mining leases which has nothing in it for citizens. This creates problems for mining companies exacerbating their legitimacy to operate in host communities.

  83. 83.

    Gavin, T. et al. (note 80), 580. The authors argue that environmental impact is twofold, one positive and two negative. The positive effect refers to new facilities provided by the mining companies, namely, housing, educational facilities, access to water, health facilities, and improved transportation networks. The negative effects include noisy environment; disrupted water, air, and land decreasing the environmental quality; and increase in disease. Some of the health problems associated with mining raised include tuberculosis, catarrh, skin irritations, boils, eye problems, chronic coughs, and malaria. The effect of these diseases contributes to the conflicts between host communities and mining companies.

  84. 84.

    For a more detailed discussion on the environmental effect of mining on Obuasi, see Mensah and Okyere (note 13), 74–81.

  85. 85.

    Opoku Mensah, S. and Asare Okyere, S. (note 13), 75

  86. 86.

    Mensah, V. ‘The Role of corporate social responsibility on sustainable development: A case study of the mining community in Obuasi Municipality – Unpublished Thesis’. Available at http://hdl.handle.net/11250/135139 [Accessed on 24 March 2022]

  87. 87.

    Opoku Mensah, S. and Asare Okyere, S. (note 13), 78

  88. 88.

    Puja, M. ‘9 Adverse Effects of Mining on Environment’, available at https://www.yourarticlelibrary.com/environment/9-adverse-effects-of-mining-on-environment/12334 [Accessed on 4 February 2022]

  89. 89.

    Gavin, T. et al. (note 80), 577–578

  90. 90.

    Adonteng-Kissi, O. and Adonteng-Kissi, B. (note 27), 196

  91. 91.

    Idemudia, U. (2014), ‘Corporate Social Responsibility and development in Africa: Issues and possibilities’, Geography Compass, Vol. 8 (7), 421–435

  92. 92.

    Adonteng-Kissi, O. and Adonteng-Kissi, B. (note 27), 196

  93. 93.

    Article 20 (1) and (2) of Ghana’s 1992 Constitution

  94. 94.

    Conde, M. and Le Billion, P. (2017), ‘Why do some communities resist mining projects while others do not?’, The Extractive Industries and Society, Vol. 4, 684

  95. 95.

    Ahmad, A. and Lahiri-Dutt, K. (2006), ‘Engendering mining communities examining the missing gender concerns in coal mining displacement and rehabilitation in India’, Gender Technology and Development, Vol. 10 (3), 313–339. Also, Downing, T. E. (2002), ‘Avoiding new poverty: mining-induced displacement and resettlement’, International Institute for Environment and Development, London, United Kingdom

  96. 96.

    Szablowski, D. (2007) ‘Transnational law and local struggles’ Mining Communities and the World Bank, Bloomsbury Publishing. Also Owen, J. R. and Kemp, D. (2015), ‘Mining-induced displacement and resettlement: a critical appraisal’, Journal of Cleaner Production, Vol. 87, 478–488

  97. 97.

    Owen, J. R. and Kemp, D. (2015), ‘Mining-induced displacement and resettlement: a critical appraisal’, Journal of Cleaner Production, Vol. 87, 486

  98. 98.

    Singh, N. et al. (2007), ‘Resolving Water Conflicts in Mining Areas of Ghana Through Public Participation: A Communication Perspective’, Journal of Creative Communication, Vol. 2 (3), 362

  99. 99.

    Avotri et al. (2002) ‘The Health Impact of Cyanide Spillage at Goldfields Ghana Limited, Tarkwa, Report

  100. 100.

    Singh, N. et al. (note 98), 362. The authors refer to works undertaken by Amonoo-Neizer and Amekor (1993), ‘Determination of Total Arsenic in Environmental Samples From Kumasi and Obuasi’, Ghana Environmental Health Perspectives, Vol. 101 (1), 46–49; Armah et al. (1988), ‘Heavy Metal Levels and Physical Parameters of Drainage Ways and Wells in Three Mining Areas in Ghana’, Journal of the Ghana Science Association, Vol. 1 (1), 113–117; Hilson, G. (2002), ‘Promoting Sustainable Development in Ghanaian Small-scale Gold Mining Operations’, The Environmentalist, Vol. 22, 51–57; and Smedley, P. L. (1996), ‘Arsenic in Rural Groundwater in Ghana’, Journal of African Earth Sciences, Vol. 22 (4), 459–70.

  101. 101.

    Kwakyewah, C. and Idemudia, U. (2017), ‘Canada-Ghana Engagements in the Mining Sector: Protecting Human Rights or Business as Usual’, Transnational Human Tights Review, Vol. 147 (4)

  102. 102.

    Hilson, G. and Nyame, F. (2006), ‘Gold mining in Ghana’s forest reserves: a report on the current Debate’, Area, Vol. 38 (2), 175

  103. 103.

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  104. 104.

    Ellimah, R. (2015), ‘Stained Gold: A story of Human Rights Violations in Ghana’s Mining Industry’, Amphibious Accounts: Human Rights Stories from the Global South’, available at www.amphibiousaccounts.org/#/publicacion/27 [Accessed on 28 January 2022]

  105. 105.

    Barton, B. D. (2005), ‘A Global/Local Approach to conflict Resolution in the Mining Sector: The case of the Tintaya Dialogue Table, Fletcher School, Boston, 2005. Also Parker, A. R. et al. (2008), ‘Managing Risk and Maintaining License to Operate: Participatory Planning and Monitoring in the extractive sector

  106. 106.

    They include Wassa Association Communities Affected by Mining (WACAM), Third World Network, CEPIL.

  107. 107.

    Kwakyewah, C. and Idemudia, U. (note 101)

  108. 108.

    World Commission on Environment and Development (WCED), Report, 1987. Also MMSD, ‘Report of the workshop on indigenous peoples and mining, minerals and sustainable Development’, Perth (4–6) February), International Institute for Environment Development (IIED), London, 2002b

  109. 109.

    These include the Concession Ordinance, 1900 Cap 14, the Concessions Ordinance Act of 1939, Cap 136, the Minerals Act 1962, Act 126, the Minerals and Mining Law 1986, P.N.D.C.L. 153, Minerals and Mining (Amendment) Act, 1994, Act 475, the Minerals and Mining Act, 2006, Act 703, and Minerals and Mining (Amendment) Act, 2015, Act 900.

  110. 110.

    The Minerals Development Fund Act, 2016 (Act 912)

  111. 111.

    Adomako-Kwakye, C. and Adjei Bediako, E. (2019), ‘Is the Mineral Development Fund Act the Panacea for Development of Mining Areas in Ghana? Vol. 8, K.N.U.S.T. Law Journal, 165. The authors argue that the royalties paid and the manner they are applied cannot ensure the development of the mining areas due to little or no accountability regime under the law as well as the quantum paid.

  112. 112.

    Minerals Income Investment Fund Act, 2018 (ACT 978)

  113. 113.

    See section 3 of Act 978.

  114. 114.

    See section 40 and the interpretation section of Act 978.

  115. 115.

    Section 4 of Act 978

  116. 116.

    Adomako-Kwakye, C. and Adjei- Bediako, E. (note 111), 165

  117. 117.

    Adonteng-Kissi, O. and Adonteng-Kissi, B. (note 27), 204

  118. 118.

    See note 47.

  119. 119.

    Benjamin Boakye et al. (2018), ‘Implementing the Ahafo Agreements: Seeking meaningful community participation at Newmont’s Ahafo Gold Mine in Ghana, Canadian International Resources and Development Institute Report. Available at https://ssrn.com/abstract=3661951 [Accessed on 26 September 2022]

  120. 120.

    Benjamin Boakye et al. (note 117)

  121. 121.

    Catherine Coumans (2012), ‘Mining and Access to Justice: From Sanctions and Remedy to Weak Non-Judicial Grievance Mechanisms’, Vol. 45(3), UBC Law Review, 661–666

  122. 122.

    Williams, Z. P., ‘The Impact of Investor-State Arbitration on Domestic Mining Conflicts’

  123. 123.

    Williams, Z. P. (note 122)

  124. 124.

    Shelley Marshall et al. (2013) ‘Access to Justice for Communities Affected by the PT Weda Bay Nickel Mine: Interim Report’ available at https://ssrn.com/abstract=234957 Accessed on 26 September 2022

  125. 125.

    M. Cappelletti and B. Garth (1978), Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective’, Vol. 27, Buffalo Law Review, 186–190

  126. 126.

    Article 257 (6) of Ghana’s 1992 Constitution

  127. 127.

    Bruce Harvey (2014), ‘Social development will not deliver the social licence to operate for the extractive sector’ The Extractive Industries and Society, Vol. 1, 7–11

  128. 128.

    The Petroleum Revenue Management Act, 2010, Act 815, as amended

  129. 129.

    Note 126

  130. 130.

    C. Coumans (2012), ‘Mining and Access to Justice: From Sanctions and Remedy to Weak Non-Judicial Grievance Mechanisms’, Vol. 45(3), UBC Law Review 665–666

  131. 131.

    Moffat, K. and Zhang, A. (note 37), 61

Abbreviations

CPP:

Convention People’s Party

CSR:

Corporate social responsibility

FPIC:

Free, prior, and informed consent

GDP:

Gross domestic product

GRI:

Global Reporting Initiative

GSR:

Golden Star Resources

ICMM:

International Council on Mining and Metal

NLM:

National Liberation Movement

SLO:

Social license to operate

Author information

Authors and Affiliations

  1. Faculty of Law, Department of Commercial Law, Kwame Nkrumah University of Science and Technology (KNUST), Kumasi, Ghana

    Chris Adomako-Kwakye

  2. Faculty of Law, Private Law Department, Kwame Nkrumah University of Law and Technology, Kumasi, Ghana

    Richard Obeng Mensah

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  1. Chris Adomako-Kwakye
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Correspondence to Chris Adomako-Kwakye .

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Editors and Affiliations

  1. School of Law, University of Bradford, Dundee, UK

    Victoria Nalule

  2. Law School, Hamad bin Khalifa University, Doha, Qatar

    Damilola S. Olawuyi

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Adomako-Kwakye, C., Mensah, R.O. (2023). Social Legitimacy as the Unresolved Driver in Mining Conflicts: A Case Study of Ghana. In: Nalule, V., Olawuyi, D.S. (eds) The Palgrave Handbook of Arbitration in the African Energy and Mining Sectors. Palgrave Studies in Energy Transitions. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-96183-1_30-1

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  • Print ISBN: 978-3-030-96183-1

  • Online ISBN: 978-3-030-96183-1

  • eBook Packages: Springer Reference Social SciencesReference Module Humanities and Social SciencesReference Module Business, Economics and Social Sciences

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