A coalition of Civil Society Organisations (CSOs) has petitioned President Akufo Addo and the Speaker of Parliament to revoke “Environmental Protection (Mining in Forest Reserves) Regulation L.I 2462, which according to them offends provisions in the constitution and other laws on the protection of forests. The petition signed by 23 CSOs said, the L.I 2462, if not revoked has the potential to reverse all the gains and commitments Ghana has made in forest protection and the fight against climate change. “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. L.I. 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”, the petition said. The petition also questioned the capacity of the Environmental Protection Agency (EPA) under the new L.I. to regulate mining in forest reserves. It said, 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. “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”, the petition said. Below is the petition. The Coalition of CSOs respectfully requests your Excellency, Mr. President 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). The purpose of the L.I. is to provide for mining activities in forest reserves and other related matters. 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. All Ghanaian citizens are similarly duty-bound to protect and safeguard the environment. 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. 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. 2.5 Your Excellency Sir, 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. 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 forestry 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. L.I. 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. 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. 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, restrictions on mining in prohibited areas, 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 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 ack of legislative support, thereby reaffirming the importance of adherence to established legal frameworks and principles. 5.0 USURPATION OF UNDELEGATED EXECUTIVE AUTHORITY BY THE EPA 5.1 Your Excellency, 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 abrogant, 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. 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 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 Your Excellency 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 the Strategic Direction 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 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. 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 clearly 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. 7.0 FORESTRY SECTOR IMPACTS OF L.I. 2462 7.1 Your Excellency, L.I. 2462 has opened the floodgates for institutionalized mining in our forest reserves without restriction. Since its passage a year ago, eight (8) mining leases have been issued to mine forest reserves including three Globally Significant Biodiversity Areas (GSBAs). Additionally, 15 mining lease applications to mine in forest reserves are at various stages of approval. 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. 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 CONCLUSION Your Excellency from the above, it is evident that L.I. 2462 is a bad law and has the potential of reversing the gains on forest management and the fight against climate change. 9.0 PRAYER The coalition of CSOs and institutions respectfully request Your Excellency to cause the revocation of L. I 2462 to safeguard our forest reserves. 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 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 (RAINS) 23. GHANA INSTITUTE OF FORES