Settlement in ExxonMobil dispute #nlpoli

CNLOPB regulates the Newfoundland and Labrador offshore

The Government of Canada and ExxonMobil have reached a settlement in the oil company's 16-year-old dispute over the Canada-Newfoundland and Labrador Offshore Petroleum Board's requirement for spending on research and development.

In the settlement, reached in January,  the Government of Canada will pay ExxonMobil CDN$35 million to end an arbitration under the North American Free Trade Agreement. 

ExxonMobil challenged a CNLOPB requirement that offshore operators of producing fields spending an amount of the earnings on research and development in the province.  ExxonMobil challenged the requirement in 2004 and in 2011 won an arbitration that found the requirement violated ExxonMobil's rights under NAFTA.  The award in the first claim was $17.3 million.

The second claim was for damages incurred between 2012 and 2015 not included in the first award. Before an amended version of the claim proceeded, the parties reached a settlement.

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Offshore royalty audits “Behind, big time”: Dunderdale

In July 2006 when Danny Williams accused ExxonMobil of denying the provincial government access to the books for the Hibernia project there was a lot more to the story either than what he said or than just his fit of pique at the failure of talks to develop Hebron.

Williams put it in another context altogether at the time, claiming the company had reneged on a commitment to “audit process to validate statements by the company that the Hibernia project was not meeting the owners’ expectations.”

As it turns out, the reality – revealed almost three years later by the province’s auditor general in his annual report for 2007 (year ending 31 March 2008) -  is that the provincial government was and is behind in its own audits of offshore oils project reports:

… At October 2008 [sic], there were 87 annual royalty and eligible project cost submissions made by project
owners for which the Department has not started any audit work. No royalty or eligible project cost audits have been conducted on the Terra Nova or White Rose projects since production started in 2002 and 2005 respectively.

On top of that the department’s audit manual was approved in 2000 but hasn’t been updated in the intervening seven years.

The auditor general also revealed that the department had quietly dropped its 2006 demand for access to the Hibernia books claiming they could adequately assess the issues without the company’s documents.

Each of the 15 companies operating offshore are required to file monthly and yearly operating reports with the provincial government.  They must also file an audited financial report annually on project costs.  All these are used to calculate royalties paid to the provincial government’s royalties and benefits division of the natural resources department.

The majority of the outstanding audits, shown in the chart at left taken from the auditor general’s report,  are for the period after 2003.

In early 2006  - the year Williams made his accusations against ExxonMobil and the year before the one audited by Noseworthy – then natural resources minister Ed Byrne told a House of Assembly committee that his department was experiencing staff problems in the division of his department responsible for the royalty and cost audits. 

MR. E. BYRNE: Difficult not only to attract, difficult to maintain. A lot of this, too, is part and parcel of the energy policy review that is ongoing and the dedicated resources we put to that. Within the Department of Natural Resources, the energy division is most challenged, more than any other division within the department, on not only recruiting but maintaining.

We had senior petroleum auditors who left for double the salary. We recently had an ADM who took a job in Calgary. I do not know what his salary was or what he was offered. He was making a competitive salary here, but it was a significant offer. Those are issues that the deputy and government struggle with everyday. Anyway, that is part and parcel of the change in direction there.

Within the local oil patch the migration of senior, experienced public servants to the private sector caused a great deal of chatter.

The problem hasn’t gone away.  Last May, natural resources minister Kathy Dunderdale told the House of Assembly’s Resources Committee that there had been a number of vacancies in the audit division and that the department was hiring outside contractors to take up the slack. She said the audits were “Behind, big time.”

The department’s deputy minister  - Chris Kieley - told the committee:

For those three projects [Hibernia, Terra Nova and White Rose], and with the increased activity, every year we are doing audits but, because of the turnover in staff, because of the resources that were assigned to that particular piece in previous years, the audits were behind; so, this past year and the year before we have made a particular effort to get those audits up to date and we have used outside assistance through auditing firms to help us do some of those audits. So, we have a combination now of outside accounting firms helping us get the audits up to date and we have our own staff working on the audits as well. We are working on a number of different audits now with all our projects at this point.

Kieley also insisted in May that

“[w]e are within the timelines prescribed by legislation (inaudible) the Hibernia royalty contract, but we are behind and we are putting extra effort into this whole piece to get caught up. When I say behind, we have not lost any ability to audit these. What we are saying is that we would like to get them up to a closer time frame.”

Auditor General John Noseworthy noted in his report that the Hibernia audits completed had revealed $8.66 million owed to the provincial government.  In her testimony to the resource committee, natural resources minister Kathy Dunderdale insisted, however,  that “there has been nothing earth-shattering that we have come across to this point.”  The completed audits done in May 2008 are almost identical to the ones listed as finished by the auditor general in his report.

Noseworthy also noted that the department had committed to completing all outstanding audits by 2010. At the same time, though noted that even the 2008 schedule was off, largely due to staffing problems within the natural resources department.

In 2008, the work plan was amended to move 2400 hours of work scheduled for White Rose to 2009 as a result of audit work done for Hebron.  As of October 2008 – half way through the fiscal year - an external contract for an auditor had not be let for 2008.

The 2008 audit plan was based on 1400 hours for four staff positions supposed to be filled by the start of the fiscal year.  By October 2008, one position was still vacant.  Another was filled in July and only two of the original four planned were in place in April 2008. Associate deputy minister Pierre Tobin gave the resource committee a different version at the committee hearings in May.  Rather than disclose that two audit positions were vacant, he left the committee with the impression the division was “almost fully staffed”:

That would be, in the past year, a number of auditors, but those positions have since been filled for the most part. There would also have been a couple of development officers and a couple of economists. We are almost fully staffed, particularly in the royalty audit section. We are down one person out of upwards to a dozen, I guess; we are doing really well there. [Emphasis added]

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Groundwork: The Hebron MOU deconstructed, as announced

To help in assessing the final Hebron deal, here are some notes drafted for a Bond Papers post last year:

Bottom line: Bond Papers said it about 18 months ago, and overall it remains true - a deal is good.

Both sides wanted it. The provincial government needed the deal, like they needed it 18 months ago. There are some implications of the delay as described below.

Even the memorandum of understanding takes a huge political monkey off Danny Williams' back.

The oil companies get to develop more oil than initially planned for about the same cost as originally proposed.

Much work needs to be done, especially on the local benefits package. The provincial government backgrounder contains conditional language that needs to be sorted out in the detailed negotiations.

As Williams said of Voisey's Bay, the detailed agreement are where the companies can find loopholes, escape hatches and off- ramps to avoid delivering on what they appear to have agreed to deliver.

Let's take a look at some specific issues.

1. Superlative language. Characteristically, the Premier and his energy minister used superlatives to praise their own memorandum of understanding.

Words like "tremendous", "historic" and "off the chart" were flowing easier than API 70 oil.

As a general rule, use of over-the-top language is an indicator of an insecurity in the announcement itself or an effort to offset some deficiencies. Hyperbole is a Danny Williams trademark.

2. What Danny originally asked for

Two of the three, depending on which April one considers.

- April 2005. [ram audio file] Better royalties, secondary processing i.e. a refinery, and better research and development funding.

- April 2006. Super-royalties, an "equity" stake, and better local benefits.

3. Equity. Total estimated cost: $360 to $660 million. 4.9%, costing $110 million plus an estimated $250 million of construction costs. The Premier also predicted an additional set of costs of some $2.0 to $6.0 billion over the 25 year life of the project; that would translate into additional costs from the equity position of $300 million.

Those costs must be recovered before the equity position yields any cash as net benefit to the provincial treasury.

Beyond that the province's energy company - that still exists only on paper - now holds a series of undisclosed risks and liabilities.

4. Larger field. The earlier negotiations involved only the Hebron field and its approximately 500 million barrels of heavy, sour crude. This project adds about 200 million barrels of light sweet crude in the Ben Nevis structure.

Ordinarily, this would add additional cash value to the project, but as noted below, the total projected revenue is not significantly better than that estimated for the earlier negotiation.

5. Tier 3 Royalties. Super-royalties that deliver a percentage based on oil above a certain dollar price? Not exactly.

What turned up in the news conference looks more like the Hibernia royalty regime.

From the official backgrounder:

The new super royalty for the province is an additional 6.5 per cent of net revenue at higher oil prices (>US$50 WTI/bbl) after net royalty payout;

From the Hibernia royalty regime:

The Net Royalty consists of a two tier profit sensitive royalty which becomes effective when Net Royalty Payout occurs.

• Tier 1

The Tier 1 Net Royalty is 30% of Net Revenue after a Return Allowance of 15% is achieved. Basic Royalty is a credit against this royalty. Therefore, the interest holders pay the higher of Basic Royalty or Tier 1 Net Royalty.

• Tier 2

The Tier 2 Net Royalty is 12.5% of Net Revenue after a Return Allowance of 18% plus the CPI is achieved. The Tier 2 Net Royalty is in addition to any other royalties payable.

Net royalty payout is "point in time when the costs related to a particular project are recovered plus a specified return allowance on those costs." A similar concept exists in the province's basic offshore royalty regime.

In all likelihood, the triggers to attain Tier Three royalties are such that they will not be achieved on Hebron until after other royalties have been triggered. There is no way to be certain since the language in the backgrounder is too vague to determine how the new Tier Three royalty relates to the rest of the royalty regime used for the Hebron negotiation.

One thing is certain: Tier Three royalties are only available after the project achieves simple payout. That means the possibility of collecting the additional revenue is contingent on the price of oil being above US$50 per barrel from the mid 2020s onward.

6. Other royalty regime changes. The provincial government's so-called generic royalty regime for offshore projects was developed in 1996. It clearly establishes the minimum royalty to be paid to the provincial government is 1% of gross revenue and increases progressively to 7.5% until simple payout occurs.

The backgrounder for the Hebron MOU refers to a change to royalty regime to "[p]rovide downside royalty protection by keeping the basic royalty rate at one per cent of gross revenue until project costs are recovered (i.e. simple payout)."

There is nothing in the provincial documentation to indicate why it would be necessary to introduce this new concept except that the progressive increase in the basic royalty rate is being eliminated.

As such, provincial government royalties will be a mere 1% until such time as the project achieves simple payout.

7. Revenues. The news release today provide a revenue estimate for the province of $16 billion over the 25 year lifespan of the Hebron project.

On the face of it, this figure appears to be nothing more than an adjustment to figures used by MUN economist Dr. Wade Locke that projected up to $10 billion, based on an assumed oil price of US$50 per barrel. Bond Papers noted this possibility in a pre-announcement post.

However, Locke did not anticipate a change to the basic royalty regime that reduces royalties to 1% during the entire pre-payout period.

There is also no indication from the Premier on the revenue flow anticipated from the equity position, thus, with the new lower royalty regime, this $16 billion is highly suspicious.

8. Research and Development. The commitment for $120 million over the 25 year lifespan of the project appears to be below the current standard set by the offshore regulatory board.

9. Timelines. The project may begin construction in 2010. This assumes that the complex negotiations for the development agreement are concluded successfully and quickly and that the development application to the offshore board is approved expeditiously.

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The Old Approach

Turns out the scuttlebutt on the Hebron announcement was off.

No announcement this week.

The deal is apparently done, but the formal announcement has been moved.

Best guess:  August.

After the by-elections are underway and somewhere in the middle of the CRA polling time.

Perfect time for an announcement in the old fashioned political tradition.

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Exxon confirms second Orphan Basin well

ExxonMobil confirmed Thursday that it will drill a second exploration well in the Orphan Basin offshore Newfoundland in 2008.

The well had been forecast but until Thursday, the oil giant had been reluctant to commit to drilling.

Its first well in the deep water area north of the Jeanne d'Arc Basin - site of current offshore production at Hibernia, White Rose and terra Nova - cost an estimated US$200 million.

The Orphan Basin is located approximately 390 kilometres northeast of St. John's. The area is estimated to hold as much as eight billion barrels of oil. Existing exploration parcels are both inside and outside Canada's 200 mile exclusive economic zone. Water depth ranges from 250 metres in the western portion to over 2500 metres in the centre. More detailed information on the area is contained in the environmental review conducted for the offshore regulatory board in 2003.

Also on Thursday, ExxonMobil reported third quarter profits were down 10% form the same period in 2006.

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Waiting for the "real deal": deconstructing the Hebron announcement

"That's the details...That's where the deal gets done. That's where the off-ramps are. That's where the security is for the people of Newfoundland and Labrador. ... We want to see the real deal."

Danny Williams, Leader of the Official Opposition, June 2002

At 10:00 AM on August 22, 2007, Premier Danny Williams will hold a news conference and announce a miracle.

[Update 0745 hrs 22 Aug: According to CBC Radio's David Cochrane, the news conference will take place at 11:00 AM or noon. Bond papers understands it will involve only Premier Williams. As Cochrane indicated, there is no final and binding legal agreement but rather a general statement of principles (see below). Cochrane compared the situation to Voisey's Bay (again, see below), and acknowledged that there may not be an agreement reached. Cochrane dismissed the prospect given that both sides need a deal.]

The Premier will announce a deal to develop Hebron in which he negotiated every single one of his demands successfully at no or virtually no cost.

The reality is starkly different, if for no other reason than what the Premier is likely to discuss on Wednesday is not a complete agreement but rather a memorandum of understanding [MOU], a statement of principles to guide further talks that in itself is not legally binding on either party. According to some indications, the MOU will be kept confidential.

The details of the development agreement for Hebron remain to be negotiated.

The Hebron announcement will be starkly different from the position Danny Williams took as opposition leader in 2002 on the Voisey's Bay deal, although the circumstances are virtually identical.

As a Canadian Press story put it in June 2002:

But critics on the opposition benches warned a monumental bungle is in the making because the vote [in the House of Assembly] dealt with an 18-page statement of principles, not a legally binding commercial agreement.

"It's the worst ... document I've ever seen," Conservative Leader Danny Williams said outside the legislature. "It's not even a legal document because it's not legally enforceable. We as a people are being insulted by being asked to vote on this."

The legal text, which could comprise up to 150 pages of dense terminology, will be drafted by lawyers behind closed doors later this fall.

For the past nine days, Williams insisted the final text, not statement of principles, should be debated and put to a vote in the legislature.

"That's the details," he said. "That's where the deal gets done. That's where the off-ramps are. That's where the security is for the people of Newfoundland and Labrador. ... We want to see the real deal."

Effectively, Newfoundlanders and Labradorians will be voting on a Hebron statement of principles come October 9 but without the details which, as Danny Williams himself put it five years ago, is "where security is for the people of Newfoundland and Labrador."

It would be even more ironic - if that is even possible - were the Premier to make a comment along these lines on Wednesday: "We're completely satisfied we have all of the provisions that we need, all of the stop-gap measures, all the guarantees."

To give a sense of what likely won't be known on Wednesday with any certainty, consider these points:

1. Super-royalty: There will apparently be a provision covering special royalties while oil is priced above a certain dollar amount per barrel. There has been no public discussion of how this would work and hence there is no calculation of how this regime will interact with the other royalty regime.

It is conceivable that the province's existing royalty regime has been supplanted by an entirely new one - never publicly disclosed - complete with different triggers, different calculations and therefore different potential cash values to the provincial treasury.

Wade Locke's assessment of Hebron royalties of $8.0 to $10.0 billion over the 20 year lifespan of the project may well need to be replaced by an entirely new set of calculations.

Unless details of the royalty regime are released, there will be no way for an independent analyst, such as Locke, to assess any provincial government claims about royalties.

2. Equity stake. There will be a 4.9% equity position for the provincial energy company, according to media reports. Expect the provincial government will pay a fair market price - yet to be determined - for the stake and that the energy company will also bear its share of project development cost and downstream liabilities.

Those points have been at the heart of the oil companies' position on equity. The Premier has essentially accepted them already publicly when he stated that the provincial government would pay fair market price.

The problem for the public will come in assessing the real value of the equity stake. Premier Williams gave it a net value of only $1.5 billion over the life of the project based on discussions up to April 3, 2006. It is possible that in accepting operator risk - something the province has eschewed until now, apparently - the net cash value of the equity stake will be near zero.

The Premier has never publicly indicated any other value to the province of the equity stake and establishing an oil company.

[Update: CBC's David Cochrane attributed to Premier Williams acquisition cost of $150 million to the equity position. On the face of it, this is ridiculously low. If Hebron development cost were $5.0 billion, then 4.9% of that alone would be $245 million.

Added to that cost must be the share of other downstream costs and liabilities. If getting into the oil business on a project like Hebron - estimated gross value of US$25 to US$35 billion- was that cheap, everyone would be in it. ]

3. Local benefits: One of the major issues in the 2005/06 negotiations was apparently the amount of work to be done within the province. This remains an significant issue, made more acute by outmigration since April 2006.

Any provisions of the agreement which establish local benefits as work commitments must take into consideration the local labour market and the local industrial capacity in the context of a major construction project at Long Harbour, the likelihood that the Lower Churchill will start within the next three to five years, and the possibility that one or two other major construction projects at the northeastern end of Placentia Bay would also tax the local industrial capacity.

One way of coping with the issue would be to allow work - such as the topsides - to be shipped out of the province for completion based on certain conditions being met. As well, the provincial energy company may opt to slow work on the Lower Churchill or allow that project to export components or outsource supplies to ensure that Hebron can meet its first-oil target.

Since there are a limited number of facilities in the province capable of constructing some of the larger project components, a project such as the Joint Support Ship for the Canadian navy, might take a facility such as the Marystown yard out of contention for one or the other project.

The superheated Alberta construction marketplace has already taxed some aspects of the national labour supply. Challenges would exist in finding enough skilled workers in a relatively tight time frame to complete the planned and potential major projects across Canada, including the ones listed above.

4. Conflict of interest: Bond Papers raised this issue specifically focused on Ed Martin, the chief executive of Hydro who headed the 2006 negotiating team. The conflict remains, even though this round of negotiations appears to have been headed by the Premier himself.

Fundamentally, any political demands that insist on work being done in the province have to be paid for by some party.

Given that the provincial government is almost certain to become an operator, it is now faced with the dilemma. As an operator, it would seek to lower costs and thereby maximize profit which would flow ultimately to the provincial treasury. As a provincial administration interested in maximising local work, it would seek to maximize that local work irrespective of costs.

Until now, those interests were aligned: lower costs meant higher royalties.

Beginning with this agreement - when and if the details are finalized - the provincial government faces an internal conflict of interest not seen since the Peckford administration and negotiations on Hibernia.

How that conflict is resolved will determine much of the value of the final agreement, when and if it is reached.

5. There has been no public discussion of potential research and development work related to Hebron, let alone what the requirements might be.

6. Tax concessions: One sticking point for the provincial government in 2006 was a demand by the companies for a sales tax exemption for the construction phase of the project, similar to an exemption granted to Hibernia, as well as the creation of an investment tax credit.

Tax concessions - although not characterised as such - might form a part of this agreement as a mechanism to lower operator costs on an already difficult and costly project.

7. Dates and timelines. Some 18 months have already been lost on the project. The operators disbanded the project management team in 2006.

That team now must be assembled again.

The details of the agreement with the provincial government must be negotiated.

A development application must be submitted to the offshore regulatory board. The board must review the application, adjust portions and hold public hearings before the project can be sanctioned.

Even allowing some concurrent work, it is likely that first oil from Hebron will not be achieved much before 2014.

8. Hibernia South. As much as the parties attempted to downplay it, it appears that the provincial government's rejection of Hibernia South development was linked to collapse of the Hebron talks.

Some aspect of this MOU may include a side agreement to expedite development of Hibernia South, with the province essentially abandoning any demands for additional royalties and developments from the 300 million barrels of oil in the Hibernia extension. Hebron - the subject of the current discussions - is estimated to contain slightly more than 500 million barrels of heavy, sour crude oil.

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Exxon signs rig for Indonesian drill program

ExxonMobil has signed a deal with Seadrill to use its West Aquarius ultra-deep water semisubmersible rig for exploration offshore Indonesia.

The three year lease is estimated to cost US$570 million.

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Exxon returns to Timor Sea

Oil giant ExxonMobil is farming in on a prospect in the Timor Sea, marking a return to the region for the company after a decade's absence.

The well will be drilled beginning in September by the new Wilcraft jackup rig.

An Exxon spokesman yesterday described Marina as an exciting prospect. The farm-in with a junior was a clear sign of the company's enthusiasm. In recent years Exxon has spent hundreds of millions of dollars in exploration and development in Australia, mostly associated with the Bass Strait oilfields but also in re-establishing an exploration position in northern and western Australian waters in partnership with Chevron and Shell.

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Rio Tinto ripe for takeover

Mining giant Rio Tinto may be ripe for a takeover bid according to an analyst for Citigroup.

The de-rating of Rio Tinto for example, has opened up a value arbitrage and is now "well into leveraged buyout territory," according to Citigroup analyst Heath Jansen.

"Rio stands out as a potential acquisition candidate, either by private equity or the incumbent mining companies," he said in a note to clients.

Rio Tinto stock traded down in Australia despite the speculation.

Unidentified analysts have also speculated that ExxonMobil and Royal Dutch Shell may be possible buyers of the Australian mine operator.

Rio Tinto's North American operations includes Iron Ore Company of Canada in Labrador.

ExxonMobil is the largest operator in the Newfoundland and Labrador offshore oil industry.

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