Aug 5,2013 / News / Legal Brief

According to PWC’s 2013 Africa Oil & Gas Review, (Review on current development in the oil and gas industry in Africa, June 2013), South Africa is estimated to have the world’s fifth largest reserves of shale gas. With the Department of Mineral Resources (DMR) lifting its 18-month moratorium on exploration in the Karoo, the flame is now reignited in the rush for South Africa’s hydrocarbon riches. Interest in South Africa’s oil potential has boomed too, with almost all of its offshore hydrocarbon blocks under licence. It seems that suddenly the oil and gas super-majors have woken up to the potential of South Africa’s hydrocarbon prospectivity. International investment is flooding in and PWC states in its report that more than US$1 billion will be spent by the industry on exploring South Africa’s offshore oil and gas potential.

What a compelling backdrop this is and the opportunities for all South Africans are potentially game-changing if big discoveries are made. Power generation would be stabilised, refining plants would be needed and jobs and valuable new industry skills would be generated.

South Africa could become the oil and gas hub for Africa, South, East and West.  As the local economy in Aberdeen, Scotland has grown since oil was discovered in the North Sea, so too has the demand for oil and gas-related industrial activities. Such skills and services are now used around the globe, delivered from a hub in North East Scotland. Engineers, shipyard and docking specialists, geologists, rig specialists, accountants, tax experts, lawyers and construction and transportation professionals are all in high demand and are potentially huge employment opportunities for South Africans in a burgeoning oil and gas sector.  Cape Town is a perfect lay-over and re-fit stop for transcontinental rig and shipping movements from South America and the USA to Far East oil and gas provinces. Many skills will be needed.

Why then, is the government proposing a series of far-reaching changes to the mineral and petroleum legislation, which may result in throttling the upstream industry momentum? While the mining industry is mature and produces billions of rand in income, the hydrocarbons industry is in its infancy in terms of its production. The “one law fits both industry sectors” concept of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), is flawed. Is it not time for a separate hydrocarbons act which specifically deals with upstream oil and gas sector in South Africa? We think it should be considered.

FURTHER AMENDMENTS, FURTHER UNCERTAINTY

On 31 May, 2013, the minister of Mineral Resources, Susan Shabangu, gazetted her intention to bring the Mineral and Petroleum Resources Development Amendment Bill, 2013 (the “2013 Bill”) to the South African National Assembly in June of this year. This article, the first in a series which considers South Africa’s minerals legislation and regulation as it affects and applies to the oil and gas industry, looks at some of the key issues in the legislation of the 2013 Bill and their possible effect on investment in South Africa’s oil and gas sector.

THE HYDROCARBONS INDUSTRY – SHOUTING TO BE HEARD

While much has been written on how the 2013 Bill and indeed its previous 2012 draft will affect the mining industry, little comment and relevant analysis or guidance has been made available to the burgeoning oil and gas sector. There are probably good reasons for this; not least the relative insignificance of the hydrocarbons industry to the South African economy, but also the relatively limited role of oil and gas in South Africa’s natural resources mix. However, this may be about to change. A number of offshore drilling programmes will come to fruition in the coming years and if hydrocarbons are discovered and development is successful, it could have a seismic impact on South Africa’s economy.

NO SIGNIFICANT DISCOVERY HAS YET BEEN MADE

We must remind ourselves that no significant hydrocarbon discovery has yet been made and delivered to production in South Africa’s offshore blocks other than the Oribi/Oryx fields and a number of other Block 9 projects. There is also the Ibhubesi gas-to-power project in the North West which has experienced a number of challenges but still offers the prospect of a major gas development programme.

It wasn’t that long ago that the only sizable players in the South African offshore sector were PetroSA, Forest Exploration, Pioneer Natural Resources, Canadian Natural Resources and BHP. Only a limited amount of exploration and development work was undertaken; in some part due to the hiatus created by the transitional arrangements appended to the MPRDA which were designed to provide existing rights holders security of tenure. Item 4 of Schedule II of the MPRDA invited existing investors who had sub-leases (sub-leases were governed under the Mining Act, 1991, which was repealed on promulgation of the MPRDA) to convert to a new type of exploration right, and it took much longer for oil and gas companies to get comfortable with the new MPRDA regime than the legislators had intended, or hoped. Today, through the efforts of state petroleum regulator (PASA), almost all blocks offshore are now either under exploration, limited production or subject to advanced technical evaluation. In the space of only a few years, South Africa’s hydrocarbons potential has grabbed the attention of international exploration and production companies. It is a great pity that the 2013 Bill will effectively dissolve PASA, depriving the oil and gas industry of a stable and established relationship with its regulator. Regulation under the 2013 Bill will move to a series of regional managers.

Is now the right time to introduce this Bill or do we need separate petroleum legislation to encourage the growth of South Africa’s oil and gas sector?

When should government re-evaluate its position in relation to the upstream oil and gas industry? Or, is the 2013 Bill designed to meld two entirely differing industries to be governed and regulated under a single act in the hope that it will fit both? We think that now may well be the right time for the DMR to review the position – but it should consider introducing separate hydrocarbon legislation which would stabilise and give confidence to the upstream oil and gas industry.

Since 2004 when the MPRDA was brought into law, South Africa’s offshore hydrocarbons sector has fundamentally changed. Seasoned industry players who attended the Offshore Petroleum Association of South Africa (OPASA) quarterly meetings in Cape Town even five years ago, are lucky to get a seat these days.  The former CEO of PASA, Mthozami Xiphu, who with his team at PASA built and promoted South Africa’s oil and gas potential, has moved on to be the Executive Director of the South African Oil and Gas Alliance (SAOGA). He is determined to drive forward the transformational effects he knows the hydrocarbons industry could deliver. This industry is growing and organising rapidly.

A glance at PASA’s Petroleum Exploration and Production Activities Map (May 2013) now shows ExxonMobil, Total, Shell, CNR, Anadarko, Cairn India, Impact Africa, Sasol and a number of other independents as rights holders. Indeed, the recent Exxon deal with Impact Africa underlines the level of interest there is in the as yet undiscovered possibilities of the South African acreage. Additionally, the huge controversy around unconventional (shale) gas exploration in the Karoo also had the effect of raising South Africa’s hydrocarbon profile. Furthermore, Minister Shabangu’s lifting of the 18-month moratorium on shale gas exploration in December 2012 has moved the fracking industry’s momentum from red to amber. It is hoped that green will soon follow.

Like all capital-intensive long-term and high-risk investments, the oil and gas industry undertakes wide-ranging risk analysis. Part of that risk matrix will include political and legislative stability risks.  Another key economic factor is the host government’s take of the hoped-for profits. If the government take is too high, the project will not screen and competition for investment capital will be lost to a more attractive opportunity. There is intense competition for investment capital within these companies as opportunities arise and are evaluated from around the world. Frontier oil and gas provinces are either competitive or not, and not all project proposals will meet the internal screening ratios. Again, it seems there is a danger that the “one law fits both industries”  which produces one set of not entirely welcome outcomes for the mining industry, may in fact inhibit investment in the upstream oil and gas sector.

THE STATE’S BOTTOM LINE

Under current offshore oil and gas rights, South Africa reserves 10% for the state during the exploration phase. If a commercial discovery is declared and a production right applied for, the state has an option to “back-in” and pays its participating interest share of costs on a go-forward basis. A further 10% must be divested to a Broad-Based Black Economic Empowerment (BBBEE) company at market rate, either in the exploration or production phase, again on a paying percentage share basis. The 2013 Bill is, thus far, unclear on the level of government take but indications contained in the explanatory memorandum suggest a potentially significant hike. Further changes in the 2013 Bill appear to include the applicability of the BBBEE Codes and the Section 100 Charter applying to the upstream sector. There is currently no binding charter relating to the petroleum sector, although the upstream sector is mentioned in the Petroleum and Liquid Fuels Charter (not a section 100 charter). In other industry sectors, the BBBEE divestment obligation is much higher than the 9% mentioned in the Petroleum and Liquid Fuels Charter as applicable to the upstream sector. However, there is acknowledgement of the high capital risk associated with the upstream sector – particularly during exploration and development – and the sums involved are huge. If the intention is that the oil and gas industry will have to comply with and adhere to the Mining Charter, then that 9% divestment obligation could rapidly become a 26% divestment.

ATTRACTIVE FISCAL AND ROYALTY REGIME

On the fiscal side of the equation, South Africa currently looks attractive. Oil and Gas fiscal legislation is contained in Schedule 10 to the Income Tax Act 58 of 1962 and provides for corporate taxation of 28% for oil and gas companies, generous capital uplifts through the exploration phase and uplifts on development and production phases. In all, the current total “government take” makes South Africa attractive enough in the competition for investment capital for many of the world’s major and super-major oil and gas companies to want to invest. There is separate royalty legislation, being the Mineral and Petroleum Resources Royalty Act 28 of 2008, where a royalty is payable on production with a current cap at 5%.

LEGISLATIVE STABILITY AND CERTAINTY OF PROVISIONS

The danger of the 2013 Bill is that its provisions are vague and so potentially dilutive to investors that many will re-model their project economics. Many of the most attractive hydrocarbon prospects in the South African offshore basin are technically very challenging and will require immense capital expenditure. It could well be 10-15 years before any successful development is brought to production and costs can begin to be recovered. There is a risk here that such strident changes to legislation before there is a proven hydrocarbon basin in South Africa, is simply premature. It is recognition of this point which illustrates most glaringly the need to develop a separate legal framework for the hydrocarbons industry.

The broad thrust of the changes set out in the 2013 Bill looks like a classic case of resource nationalism. The state has developed mineral resources policy to maximise the revenue and social change potential that a successful and thriving minerals and hydrocarbons sector could produce. Both PASA and the DMR learned very quickly from other mature hydrocarbon provinces around the globe that the oil and gas licencing regime needed to adapt. South Africa is headed towards a form of hydrocarbon licensing model used in many other jurisdictions where the state’s share of the upside of a project will be much greater.

BBBEE POLICY

However, a key differentiator in South Africa’s policy development is the constitutional imperative of social and economic transformation. Ministers must make policy which benefits historically-disadvantaged groups. All South Africans must share in the country’s mineral resource riches and the government has sought to achieve this with some vigour in the 2013 Bill.

The international oil and gas industry is used to and largely fully endorses the somewhat offensively termed “local content” element in host government instruments, but South Africa must go further in this respect. BBBEE is wide-ranging and touches all areas of social and economic life. In South Africa, international investors in the hydrocarbons sector may need to embrace an inverse concept where IOCs are the “international content”!

INCREMENTAL POLICY DEVELOPMENT AND WITHDRAWAL FROM THE “OLD INTERNATIONAL ORDER”

We are witnessing the growing development of government policy-making which is a balancing act between promoting and protecting the national interest on the one hand, and remaining competitive for international investment capital on the other. Looked at from the international investor perspective, South Africa is, like other rapidly-developing economies, re-evaluating its relationships with the “old order” and asking whether Europe and North America are in pole position any more. We have seen examples of such policy shifts in a few important examples in the mining and oil and gas sector.

BILATERAL INVESTMENT TREATY (BIT) CLAIMS AGAINST SOUTH AFRICA AND THE DEMISE OF INTERNATIONAL ARBITRATION MECHANISMS: INTERNATIONAL INVESTOR PROTECTIONS REDEFINED

Largely as a result of the scrutiny brought about by a BIT claim against South Africa, where Italian investors in the minerals sector brought an expropriation claim over BEE divestment obligations under the MPRDA, South Africa has revisited its so-called “first generation” BITs, which are those treaties signed in years immediately after 1994. It is the government’s intention to either cancel these treaties when they come up for renewal or to renegotiate them. South Africa has already signalled its intention not to renew its BIT with Belgium/Luxembourg. Ultimately, Canada did not ratify its BIT with South Africa over the inclusion of transformation carve-outs. Any BIT which allows claims touching on BBBEE issues will be renegotiated or presumably not renewed.  Similarly, international investors who were existing holders of OP26 sub-leases over offshore blocks were advised that as a matter of policy, there would be no international arbitration mechanism in the new exploration rights.

These two examples of policy shift away from international investor protection make investors wary. Clearly, South Africa is not alone in flexing its sovereignty over the international dispute resolution orthodoxy.  Like other industries, the oil and gas industry craves stability in order to ensure that its forward investment decision modelling of a project which may run as long as 50 years, is as good as it can be. The 2013 Bill may be seen as radical policy change and as such will advance up the risks matrix and become a bigger factor in forward investment decisions. The DMR and the minister herself must be tiring of being quoted the annual Fraser Institute mining company survey, which is used to goad policymakers at the DMR to do something about the poor rating that South Africa retains over policy stability and innovation in the mining sector.

The critical shift in policy development reflected in the 2013 Bill, i.e. potentially much greater state share, very much wider provisions on beneficiation of raw minerals (which includes petroleum for the first time) and tightening in the applicability of the Codes of Good Practice and Charters, along with critical changes to transfer of rights under the controversial Section 11 of the MPRDA, will meet with wide industry concern in both the mining and hydrocarbons sectors. We would urge the DMR to approach the different industrial sectors as separate and distinct and move to progress a draft hydrocarbons bill which would aid the maximisation of a golden opportunity to develop a world-class oil and gas province.

Going forward, we will consider in detail certain key provisions in the 2013 Bill and look particularly at how the BBBEE element can be structured to allow entry into the oil and gas sector. We will also consider how the 2013 Bill may inadvertently create a two-tiered licensing regime which would hugely benefit those rights holders who were granted rights ahead of any further amendments to the MPRDA. We will also look at Section 11 and its new provisions on the divisibility of rights.

This Legal Brief was co-authored by David Forfar, energy consultant at Stronachs LLP (Aberdeen, Scotland)