- This is a revised version of a paper originally presented at the 13th Biennial Conference on Petroleum, Minerals, Energy and Resources Law of the Section on Energy and Natural Resources Law of the International Bar Association in Cape Town, South Africa, in March 1998.
- Special Adviser (Legal), Commonwealth Secretariat, Marlborough House, Pall Mall, London SWIY 5HX, England. Tel: (44)171 747 6427. Fax: (44) 171 799 1507. E-mail: [email protected]
- I am grateful for the helpful comments on a draft of this article by Dr G R Woodman of the Law Faculty, University of Birmingham, England and by Fui S Tsikata of the Law Faculty of the University of Ghana, who also drew my attention to relevant material.
- The views expressed in the article are those of the author alone and do not necessarily represent the views of the Commonwealth Secretariat. The fact of the author's employment with the Commonwealth Secretariat does not imply any endorsement of his views by the Secretariat.
- See, eg, Wilks, I, One Nation, Many Histories: Ghana Past and Present (Ghana Universities Press, Accra, 1996) at p 20, where he says: ‘I have the strong impression that most of Ghana's people claim, through their traditions, to have indigenous status; that is, they are “down from the sky or out of the ground” people. This does not, of course, mean that they claim to have been where they are since God created the world. As I have argued earlier in this lecture, it has to do with being the first people to cultivate the soil, to stake out claims to this or that piece of land, and so to become, in that sense, the landowners.’
- See, eg, The Pocket Oxford Dictionary (Clarendon Press, Oxford) 7th Ed, by R E Allen: ‘native or belonging naturally (to place)’ and Webster's Third New International Dictionary (Encyclopaedia Britannica Inc, Chicago, 1976): ‘not introduced directly or indirectly according to historical record or scientific analysis into a particular land or region or environment from the outside’.
- See Anaya, James S, Indigenous Peoples in International Law (Oxford University Press, New York and Oxford, 1996) p 3.
- Convention No 169 adopted in 1989, revising the provisions of the Indigenous and Tribal Populations Convention, 1957 (No 107).
- Tornei, M, and Swepston, L, Indigenous and Tribal Peoples: A Guide to ILO Convention No 169 (ILO, Geneva, 1996).
- At p 5.
- See Document E/CN.4/ Sub.2/AC.4/l 996/2.
- See Report of the Working Group on Indigenous Populations on its 14th session (Geneva, 29 July-2 August 1996) UN Document E/CN.4/ Sub.2/1996/21, p 14.
- See Gordon R Woodman, ‘Customary law, state courts, and the notion of institutionalisation of norms in Ghana and Nigeria’ in Allott, A, and Woodman, G R (Eds) People ‘s Law and State Law: The Bellagio Papers (Foris Publications, Dordrecht, 1985) p 143 et seq.
- Supreme Court Ordinance 1876 (No 4), s 19.
- See Woodman, op cit, p 156.
- Cf G R Woodman, ‘Aboriginal Peoples and the Law of Anglophone West Africa (Excluding Liberia)’, (1987) Law and Anthropology 313 at p 322.
- See Woodman, ibid.
- See, eg, The Restitution of Land Rights Act 1994 of South Africa.
- See Bentsi-Enchill, K, Ghana Land Law: An Exposition, Analysis and Critique (Sweet & Maxwell, London, 1964), p 11 et seq. Justice Ollennu refers to the title as ‘Paramount Title’. See Ollennu, N A, Customary Land Law in Ghana (Sweet & Maxwell, London, 1962) P 4.
- See Ollennu, op cit, p 4. Also cited in Asante, S K B, Property Law and Social Goals in Ghana 1844–1966 (Ghana Universities Press, Accra, 1975), p 3.
- Asante, op cit, p 4.
- Rattray, Ashanti Law and Constitution (1929), p 361, quoted in Asante, op cit, p 22.
- See Head of Family (Accountability) Law 1985 (PNDCL [Provisional National Defence Council Law] 114).
- Prof Hancock in Hancock, Survey of British Commonwealth Affairs, Vol II, p 182, quoted in Asante, op cit, p 164.
- See s 1 of Act 126.
- See Kotei v Asere Stool [1961] GLR 492.
- Act 33 of 1992.
- See s 110(4) of the Act.
- Kirby, Justice M D, ‘The Impact of International Human Rights Norms A “Law Undergoing Evolution’” in (1996) 22 Commonwealth Law Bulletin, 1181 at p 1183.
- See Kirby, op cit passim.
- Watp 1191.
- (1992) 175 CLR 1 at p 42.
- See Polat, H, and Tornei, M, The Philippines: Participatory Development Framework for Indigenous Peoples (ILO Cooperative Branch, Geneva, 1996), 2nd Ed at p 1.
- See The Petroleum (Exploration and Production) Act, 1991 (Act 2 of 1991).
- See s 12(2)(b) of the Act.
- See s 32(1)(c)(iii) and s 33(1)(c) of the Act.
- See s 21(1)(b) of the Act.
- See s 46(2)(i).
- See Clause 11.
- Cf The following policy proposal contained in the Green Paper published by the South African Ministry of Minerals and Energy entitled ‘A Minerals and Mining Policy for South Africa’, p 54: ‘Equitable and effective consultation with stakeholders will be undertaken, particularly those communities directly affected by mining. Informed decisions will be made taking account of grassroots views on mining environmental issues, at planning stages and in the compilation of EMPs. Consultation will however not be taken to the extent where effective decision making is sterilised.’ (Emphasis added).
- PNDCL (Provisional National Defence Council Law) 153.
- PNDCL 122.
- See Article 252(2).
- The factors taken into account in constructing the formula included: Per capita GNP for the District, the proportion of the District's population to the national population, the proportion of the District's population density to the sum of population densities of all the Districts, the proportion of the District's per capita revenue collection to the total revenue collection of all the Districts, etc.
- See F S Tsikata, ‘The Vicissitudes of Mineral Policy in Ghana’ (1997) 23 Resources Policy (No 1/2) p 9 at p 13.
- Ibid.
- See Article 267(6). See also the Office of the Administrator of Stool Lands Act, 1994 (Act 481), s 8.
- See s 8(2) of the Office of the Administrator of Stool Lands Act, 1994.
- For an overview of these standards, see Ayesha K Dias, ‘International Standard-Setting on the Rights of Indigenous Peoples: Implications for Mineral Development in Africa’. Paper delivered at the 13th Biennial Conference on Petroleum, Minerals, Energy and Resources Law of the Section on Energy and Natural Resources Law of the International Bar Association in Cape Town, South Africa, in March 1998.
- See articles 13 and 14.
Journal of Energy & Natural Resources Law
Volume 16, 1998 - Issue 4