# Special Permits

## Definition

### Risky type of permit

Special permits have been used for the harting of on-reserve, natural timber. They result from the interpretation by the Ministry of Section 20(2) amending the 1998 Timber Resources Management Act (TRMA):

"The expression "timber utilisation contract" shall apply with the modifications that are necessary, to a certificate of purchase, a permit or any other authorisation for timber rights approved by the Minister on the recommendation of the Commission."

Implying the existence of 'special permits' from this provision presents at least two obstacles:

1. The Ministry's sole interpretation of a certain provision is not an adequate legal basis for special permits as there is no reference to their interpretation in the substantive part of the Act

The substantive part of the Act does not include any specific provision regarding special permits. However, the Ministry has interpreted this subsection as meaning that they themselves have the power to issue special permits. This very extensive interpretation is therefore in conflict with the substantive text of the TRMA. The single interpretation by the Ministry of this last and rather vague provision cannot be regarded as providing a legal basis for such permits.

2. The provision could be interpreted as unconstitutional as no parliamentary ratification is required

Article 268 of the Constitution requires that 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, for the exploitation of any mineral, water or other natural resource of Ghana be ratified by the Parliament.

Therefore, as special permits are used to justify the grant of timber rights without ratification by the Parliament, they may be considered unconstitutional.

In addition, granting timber rights through an administrative allocation procedure for which no limits, criteria or procedures have been fixed in the law is not consistent with the constitutional requirement for the State to recognise land managers' duty to discharge their obligations for the benefit of the original owners and their liability as fiduciaries, as provided by Article 36 (8) of the Constitution.

Relevant pieces of domestic legislation:

- Constitution of Ghana, 1992
- Timber Resources Management Act (Act 547), 1998 - as amended in 2002 (Act 617)
- Timber Resources Management Regulation (LI 1649), 1998
- Timber Resources Management Regulation (Amendment) (LI 1721), 2003

## Voluntary Partnership Agreement (VPA)

### Illegal type of permit

The Voluntary Partnership Agreement negotiated between the European Union and Ghana defines what legally produced timber is. The definition sets out Ghana’s legislation that must be complied with in order for timber products to be covered by FLEGT licenses. The definition limits legal sources of timber to TUCs, Salvage Permits and Certificates of Purchase.

Special permits have not been included amongst the legal sources of wood and therefore cannot be considered as a legal source of timber.

## European Timber Regulation (EUTR)

### Risky type of permit

Under the EUTR, operators have a due diligence obligation (Articles 4-6) to assess the risk of the timber and timber products they place on the EU market containing illegally harvested timber. Amongst other things, the due diligence obligation requires information/documentation to prove that the felling permit is legally recognised by Ghanaian law. Therefore, operators in the EU must confirm the legality of the TUC under which the timber was logged as part of the risk assessment they are conducting. They should consider whether the permit was obtained correctly and its terms were properly respected.

Considering the contradictory legal provisions, Ghanaian courts may consider the whole section 20(2) as unconstitutional and special permits as lacking legal basis. It is therefore risky to assess permits based on this clause as being legal.