Part 85
Two days ago, Column 84 set out the main provisions of the 2016 Bridging Deed. That Deed purported to keep alive the 1999 Petroleum Agreement signed by then President Janet Jagan. Effectively, it not only allows the three oil companies all the benefits under the 1999 Agreement, including pre-contract costs, and for the Government to pay their taxes in Guyana, but for those and enhanced benefits to run unchanged to 2056.
No Parliament until then will have the power to make any law adverse to the interest of the oil companies, without compensating them. Nor can the Government stop paying their taxes to the GRA for them. It probably bears reminding that all three companies are incorporated in offshore tax havens and are merely registered in Guyana.
As noted in Column 84, the Bridging Deed describes the Contract area for the 2016 Agreement as the Stabroek Block, “being the area covered by the 1999 Agreement”. Someone forgot to draw to Trotman’s attention that a new licence is expressly prohibited under section 22 (2) of the Act which states in mandatory language that “A petroleum prospecting licence shall not be granted to an applicant in respect of a block which is, at the time the application for the grant of the licence is made, comprised in a licence already granted.” It is clear then that no amount of legal gymnastics could circumvent this express provision prohibiting a second bite of the cherry.
The Government is in a catch 22 dilemma: if it argues, as it does in some places, that the 1999 Prospecting Licence had not expired at the time of the Application for the 2016 Licence, then section 22 (2) applies and there could be no second prospecting licence. And if it claims that the 1999 Stabroek Licence was expired, as Attachment “A” to the Bridging Deed indicates, it has two formidable hurdles. The first is that its purported Relinquishment is meaningless since under section 28 of the Act, relinquishment is only permissible “at any time when the licence is in force”. The second is that Attachment “A” to the Bridging Deed refers to the “expired Stabroek Licence Area”. That in my view makes the Deed ineffective since the 2016 Agreement could not be linked to a dead anything.
In his lame defence, Trotman embarrassingly argued that the Bridging Deed is like a savings clause, that it is quite normal. What Trotman does not seem to realise is that a savings provision has to be expressly permitted in legislation, or in some higher document, not in any agreement or instrument of lesser status.
Odd things happen
Here is another oddity: the Deed provided for the signing of the New Petroleum Agreement. The only trouble is that on the date of the Bridging Deed, the New Petroleum Agreement had already been signed and executed. Someone interfered with and initialled the date on the Deed but actually made it worse, and worse still, the change was not initialled by all the signatories to the Deed as is required.
A requirement set out in the Bridging Deed that the National Assembly approve an Order under s51 (1) of the Petroleum Exploration and Production Act, modifying certain specified tax laws to the Oil Companies, and the gazetting of the Order may not be so unusual, except that our sovereign body was expected to do so in within a time demanded by the oil companies. More importantly however, the Deed required the Minister of Finance to table a copy of the New Petroleum Agreement in the National Assembly when he brought the “tax modification” Order there. The Minister failed to comply. The inescapable inference is that he wanted to, and managed to hide the Agreement from the National Assembly and Guyanese until the Government was embarrassed into publishing it following the revelation of the Signing Bonus. Because the omission to table the Agreement did not prejudice the interest of oil companies, they too could not care less.
Looking after our interest
But the question must also be asked of the Escrow Agent Sir Shridath, a long-term consultant to the Government of Guyana: why did he not carry out his obligation to ensure that the conditions of the Bridging Deed were met by both sides? As a beneficiary of the public purse, did he not consider himself as having any obligation, fiduciary or otherwise, to the people of this country to see that undertakings made in their interest are honoured?
As a public official, the Minister is required to exercise discretion in making decisions. The Bridging Deed however took away much of his discretion under the law by setting out in advance what he would accept as Notices, and the text and extent of the Application for a Licence, including for the granting of a licence in respect of more than sixty blocks. By specific law, this has to be justified by special circumstances. Those who make Venezuela the bogeyman ignore the fact that many of the blocks awarded under the 1999 and 2016 Agreement are in undisputed waters and a significant number are much closer to Suriname than to Venezuela, and therefore raise no threat. And while the law allows the Minister a discretion in a section 51 tax exemption, the Bridging Deed made it into a condition.
Nothing however shows Exxon’s bad faith more than its announcement of a major find, one day after the Granger Government awarded them a tainted Petroleum Agreement made possible by the infamous Bridging Deed. It is either trickery or conspiracy. We Guyanese need to take our pick.
In concluding on the Deed tomorrow, the column will touch on some current developments.
