Pe­tro­leum Act does not pro­hibit dis­clo­sure of ExxonMo­bil/Govt con­tract Nand­lall

Weekend Mirror - - EDITORIAL -

The

rea­son ad­vanced by the govern­ment for its non-dis­clo­sure of the con­tract with the pe­tro­leum gi­ant, ExxonMo­bil, is that there is a le­gal pro­hi­bi­tion against such dis­clo­sure. The Pe­tro­leum (Ex­plo­ration and Pro­duc­tion) Act Cap 65:04 Laws of Guyana, has been iden­ti­fied as the statute which pro­hibits this dis­clo­sure. Speak­ing on this law, Min­is­ter Raphael Trot­man is quoted in the press as say­ing, “I be­lieve that the framers of the law wanted to safe­guard our na­tional pat­ri­mony with­out us ‘show­ing off’ per­cent­age to the world, which is not al­ways a hos­pitable and wel­com­ing place.” In the same in­ter­view, Min­is­ter Trot­man is quoted as say­ing that the Act is un­der re­view. He at­tributes the ‘non-dis­clo­sure clause’ to be­ing an ad­di­tion of for­mer Pres­i­dent, Bhar­rat Jagdeo, in 1997.

I re­spect­fully sub­mit that there is no pro­vi­sion in the said Pe­tro­leum (Ex­plo­ration and Pro­duc­tion) Act which pro­hibits the dis­clo­sure of the ExxonMo­bil con­tract; that Bhar­rat Jagdeo was not the Pres­i­dent of the Co­op­er­a­tive Repub­lic of Guyana in 1997, and fi­nally, the amend­ments which were made to the said Act in 1997, were unan­i­mously ap­proved and passed by the Na­tional Assem­bly at the time, thereby en­joy­ing the sup­port of, in­ter alia, both the PNC and WPA, which are now part of this govern­ment; and that those amend­ments do not pre­clude the dis­clo­sure of the said con­tract.

The rel­e­vant stip­u­la­tions against the re­stric­tions of dis­clo­sure of in­for­ma­tion are con­tained in Sec­tion 4 of the Pe­tro­leum (Ex­plo­ration and Pro­duc­tion) Act, as amended by the Pe­tro­leum (Ex­plo­ration and Pro­duc­tion) Amend­ment Act, Act No. 6 of 1997. It pro­vides thus:

“4( 1) Sub­ject to sub­sec­tion (2), no in­for­ma­tion fur­nished, or in­for­ma­tion in a re­port sub­mit­ted, pur­suant to this Act by a li­censee shall be dis­closed to any per­son who is not a Min­is­ter, a pub­lic of­fi­cer or an em­ploy- ee of the Guyana and Mines Com­mis­sion ex­cept with the con­sent of the li­censee.”

It ought to be rea­son­ably clear that Sec­tion 4(1) con­tains no pro­hi­bi­tion against the dis­clo­sure of the con­tract in ques­tion. This Sec­tion sim­ply pro­hibits in­for­ma­tion, which may have been sup­plied by the li­censee, whom I pre­sume, in this in­stance, to be ei­ther ExxonMo­bil or one of its af­fil­i­ates. Let us now ex­am­ine Sec­tion 4(2) of the said Act. It pro­vides as fol­lows:

“4 (2) Noth­ing in sub­sec­tion (1) shall be deemed to pre­vent the dis­clo­sure of in­for­ma­tion with­out the con­sent of a li­censee, where the dis­clo­sure is made—

(a) af­ter the li­cence has ceased to have ef­fect over the land to which the in­for­ma­tion re­lates;

(b) for, or in con­nec­tion with, the ad­min­is­tra­tion of this Act;

(c) for the pur­poses of, or in con­nec­tion with, any le­gal pro­ceed­ings;

(d) to any con­sul­tant to the Govern­ment or the Guy- ana Ge­ol­ogy and Mines Com­mis­sion for the pur­pose of fa­cil­i­tat­ing the per­for­mance by the con­sul­tant of any func­tions un­der the con­sul­tancy ar­range­ment; Chief In­spec­tor and In­spec­tors;

(e) for, or in con­nec­tion with, the prepa­ra­tion by or on be­half of the State of statis­tics, in re­spect of prospect­ing or pro­duc­tion op­er­a­tions re­lat­ing to pe­tro­leum;

(f) for, or in con­nec­tion with, the de­ter­mi­na­tion of any li­a­bil­ity of the li­censee to make any pay­ments to the State or the Govern­ment;

(g) for, or in con­nec­tion with, any mat­ter or pur­pose spec­i­fied in a pe­tro­leum agree­ment.”

Firstly, it ought to be ex­cru­ci­at­ingly plain that ( 2) is not only an ex­cep­tion to ( 1) and there­fore, au­tho­rizes the dis­clo­sure of in­for­ma­tion pro­hib­ited by (1), but it also au­tho­rizes the dis­clo­sure of a whole host of other in­for­ma­tion. (2)(f) and ( 2)( g) are of spe­cific im­por­tance and rel­e­vance to this dis­cus­sion be­cause they speak di­rectly to the type of in­for­ma­tion which the press has been clam­our­ing for. A care­ful read­ing of (2)(f) lends to the con­clu­sion that it au­tho­rizes and per­mits the dis­clo­sure of in­for­ma­tion in con­nec­tion with the de­ter­mi­na­tion of any li­a­bil­ity of the li­censee to the state or the govern­ment. Sim­i­larly, (2) (g) per­mits and au­tho­rizes the dis­clo­sure of in­for­ma­tion in con­nec­tion with or in re­la­tion to any mat­ter spec­i­fied in the pe­tro­leum agree­ment.

In the cir­cum­stances, it should be ab­so­lutely clear that the govern­ment and Min­is­ter Trot­man have clearly mis­in­ter­preted, or are wrongly in­ter­pret­ing Sec­tion 4 of the Pe­tro­leum ( Ex­plo­ration and Pro­duc­tion) Amend­ment Act. It ought to be equally clear also, that con­trary and in con­tradis­tinc­tion with what the govern­ment and this Min­is­ter have been ped­dling, which is, that Sec­tion 4 re­stricts the dis­clo­sure of the con­tract with ExxonMo­bil and in­for­ma­tion con­tained in that con­tract, Sec­tion 4 does ex­actly the op­po­site. It au- tho­rizes and per­mits the dis­clo­sure of such in­for­ma­tion.

This is yet an­other ex­am­ple, ei­ther through in­com­pe­tence or by de­sign, where this govern­ment re­fuses to dis­sem­i­nate in­for­ma­tion to which the pub­lic is en­ti­tled. This is a vi­o­la­tion of Ar­ti­cle 146 of the Con­sti­tu­tion, which guar­an­tees to the cit­i­zenry such in­for­ma­tion as a fun­da­men­tal right and free­dom and as part of free­dom of ex­pres­sion.

The govern­ment needs to un­der­stand that the nat­u­ral re­sources of this coun­try are owned by the cit­i­zens. There­fore, the cit­i­zenry is en­ti­tled, by right, to the ma­te­rial de­tails of any con­tract in­volv­ing the sale, alien­ation or ex­ploita­tion of those re­sources. The duty of the govern­ment to make full and frank dis­clo­sures in such sit­u­a­tions is sim­i­lar to a Board of Direc­tors’ fidu­ciary du­ties to the share­hold­ers in a lim­ited li­a­bil­ity com­pany.

In the cir­cum­stances, I call upon the govern­ment to make the rel­e­vant dis­clo­sures.

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