Tomorrow, February 8, 2017, whiles the attention of the entire nation would be on the State of the Nations address, a High Court Justice Kweku Tawiah Ackaah-Boafo would be determining the propriety of the decision by government to revoke Exton Cubic’s bauxite mining lease.
In what can be described as a series of bizarre events that started with the accosting and seizure of the equipments of the indigenous mining company by some youth on the instruction of the District Chief Executive (DCE) for Atwima Mponua William Darko.
Operators of Exton Cubic were on their way to the bauxite concession in Nyinahin when their heavy duty equipments were seized.
This incident was followed by a series of bizarre events which saw the Lands and Natural Resources Minister John Peter Amewu make an unbelievable u-turn from confirming that Exton Cubic had leases to the concession to revoking the leases after the Environmental Protection Agency and Minerals Commission turned on him.
Whiles the Minerals Commission claimed Exton Cubic had not obtained the necessary approvals and permits required by law from the Forestry Commission, Water Resources Commission and the Environmental Protection Agency (EPA) or any other regulatory body, The EPA said it had not granted the company the lease to mine but prospect.
The Minerals Commission’s claim was based on Article 268(1) of the 1992 Constitution and Section 5(4) of Act 703.
Article 268 (1) of the 1992 constitution states: 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 resource of Ghana made or entered into after the coming into force of this Constitution shall be subject to ratification by parliament.
Section 5(4) of Act 703 states: A transaction or contract or undertaking involving the grant of a right or concession by or on behalf of a person or body of persons, for the exploitation of a mineral in Ghana shall be subject to ratification by Parliament.
This argument by the Minerals Commission has been the main basis for the Attorney General’s opposition to the application for judicial review filed by lawyers for Exton Cubic.
A deputy Attorney General Godfred Yeboah Dame who argued the case on behalf of the State is questioning the existence of the mineral lease that the Land and natural Resources minister claims to have revoked.
He is of the opinion that the mineral lease does not exist because it was not ratified by parliament or contained in handing over notes from the former administration.
The EPA in its statement on the disagreement over whether or not Exton Cubic had leases to the Nyinahin concession stated “…Exton Cubic Group Limited has not obtained the required EPA permit under its mining lease and therefore, any attempt to enter the area for mining activity is illegal.”
The Agency further indicated ““On 29th March 2016, Exton Cubic Group Limited applied for three separate Environmental Permits from the EPA to undertake prospecting of bauxite on its Mprasaso, Kiriyaso, and Kyekyewere concessions in the Ashanti Region covering a total of 346.08 km sq. The EPA granted the Environmental Permits to Exton Cubic Group Limited on 7th June 2016. The company among other conditions was to notify the EPA as soon as prospecting activities commenced, and also to submit within three months from the date of issuance of the Environmental Permit a liability estimate of environmental degradation to enable the posting of the Reclamation Bond in line with Regulation 23 of the Environmental Assessment Regulation 1999 (LI 1652). Exton Cubic Group Limited, unfortunately, reneged on all these conditions,”
Exton Cubic however maintains that it has always acted in accordance with the regulations governing the acquisition of the lease in question.
The Company argued it is not its responsibility to obtain such an approval because “by virtue of section 87 of Act 703, regulation 188 of LI 2176 the responsibility to obtain such approval is placed squarely on the office occupied by the Respondent (Minister)”
In the application filed at the High Court, lawyers for Exton Cubic argue that the leases granted the company “can only be validly revoked on the grounds statutorily provided for, in accordance with due process and in the manner contractually agreed upon.”
The lawyers argue that their client, Exton Cubic has not violated any of the grounds outlined in the various mining laws based on which a mining lease can be revoked.
The lawyers categorically denied the claim that Exton Cubic failed to comply with its Environmental Assessment obligations describing it as unfounded and false.
They exhibited proof that to show that “Applicant duly complied with all of its Environmental Assessment obligations.”
Exton Cubic alleged that the Minister exceeded his powers in revoking the lease granted it.
The Nyinahin bauxite concession is within the enclave Vice President Dr. Mahmud Bawumia is using as leverage for a Chinese loan.
The decision of the court tomorrow would determine whether or not Exton Cubic, a wholly Ghanaian owned company can mine the concession or it would part of the Chinese funded and operated, Dr. Bawumia facilitated Integrated Bauxite Industry.
Under the loan arrangement, the Chinese are entitled to 10 percent of Ghana’s bauxite reserves.
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