2009年-世界发展银行全球_Review_of_the_Legislative_and_Regulatory_Documents_for_the_Oil_and_Gas_Industry_89页_1mb

Summary of the Legislative and Regulatory Advisor's Report on Ghana's Hydrocarbon Regulatory Advisory Project

Introduction

This report outlines the findings and recommendations of the Legislative and Regulatory Advisor for the Ministry of Energy of the Republic of Ghana, conducted between 19th October and 17th November 2009. The purpose was to review the draft legislative and regulatory documents for the Ghana oil and gas industry and provide insights to support the Ministry in its reform efforts.

Background

In June 2007, Ghana discovered commercial quantities of light crude oil and associated natural gas in the offshore Jubilee Field, located approximately 50 km from the coast in water depths of 1020 to 1720 meters. Since then, additional discoveries have been made at Odom, Mahogany Deep, and Tweneboa. The Jubilee Field is estimated to have proven recoverable reserves of up to 800 million barrels and an upside potential of 3 billion barrels, with a Swanson's Mean of 1.904 billion barrels. This discovery presents significant economic opportunities for Ghana, including potential GDP growth of 13% and the development of a domestic natural gas market.

Current Petroleum Regime

The existing upstream petroleum regime is governed by:

• Petroleum (Exploration and Production) Law, 1984 (PNDCL 84)
• Petroleum Income Tax Law, 1988 (PNDC Law 188)
• Ghana National Petroleum Corporation Law, 1983 (PNDC Law 64)

Supporting documents include the Ghana National Petroleum Corporation Model Petroleum Agreement, a tripartite agreement between the Government, GNPC, and petroleum contractors.

Downstream regulations are governed by:

• National Petroleum Authority Act, 2005 (Act 691)
• Public Utilities Regulatory Commission Act, 1998 (Act 538)
• Energy Commission Act, 1998 (Act 541)

Natural gas regulations include:

• Natural Gas Distribution and Sale (Standards of Performance) Regulations, 2007 (LI 1912)
• Natural Gas Transmission Utility (Technical and Operational) Rules, 2007 (LI 1913)
• Natural Gas Transmission Utility (Standards of Performance Regulation, 2008 (LI 1936)

Reform of the Petroleum Regime

The Government has initiated reforms to create a more effective regulatory framework for the oil and gas sector. Initially, a Ghana Upstream Petroleum Authority (GUPA) Bill was drafted to establish an independent upstream and midstream authority. However, this approach was reconsidered, and the Government opted for a disintegrated approach, focusing on amending existing laws and creating new regulations instead of a single comprehensive law.

Key reforms include:

• Draft Amended Petroleum (Exploration and Production) Act, 1984 (PNDCL 84)
• Draft Petroleum Upstream (Licensing) Regulations, 2009
• Draft Petroleum Upstream and Midstream (Exploration, Development and Production Operations) Regulations, 2009
• Draft Regulations to satisfy PNDC Law 84 Section 32 (1) (j) (Fiscal Regime)
• Draft Amendments to the National Petroleum Authority Act, 2005 (Act 691)

The National Petroleum Authority (NPA), originally focused on downstream, is now being considered for transformation into a comprehensive authority overseeing all aspects of the petroleum industry.

Petroleum Policy

The Government's draft National Energy Policy outlines the following commitments:

• Sustained exploitation of oil and gas resources
• Judicious management of revenues for the benefit of all Ghanaians
• Local value-added investments and indigenisation of knowledge, expertise, and technology
• Transparent revenue management to ensure equity
• Encouragement of investments along the entire value chain
• Local content and participation to promote domestic involvement
• Maximisation of natural gas utilisation, including prohibition of flaring and venting, and re-injection only if it enhances oil production
• Development of petrochemical industries through public-private partnerships

Views of the Minister for Energy

The Minister for Energy emphasized the need for a single integrated authority to manage the petroleum industry, rather than multiple agencies. He noted that the Ministry would retain policy formulation, direction, and supervision, while the new authority would handle industry operations.

The Minister also raised concerns about the capacity development of the National Petroleum Authority due to its expanded responsibilities. He requested that the regulatory documents be reviewed for clarity, completeness, and alignment with the National Energy Policy.

Review of the Petroleum (Exploration and Production) Law, 1984 (PNDCL 84)

A detailed review of the original law was conducted, with key observations:

• Section 6 (1): Fails to define land or offshore area, which is a critical legal term.
• Section 9 (3): Commerciality is not clearly defined, leading to potential ambiguity in natural gas development.
• Section 8: Does not address the sale of equity; this is covered in Section 23 (16).
• Section 9 (5): The area of relinquishment around non-commercial discoveries is unclear and may be overly restrictive.
• Section 13: Significant change of circumstances is not defined, creating uncertainty.
• Section 19: Income tax obligations of contractors are ambiguous, offering potential for tax avoidance.
• Section 21: Asset ownership is unclear, particularly for rented or leased equipment.
• Section 23 (2): GNPC's role in managing data and information is unclear, as it is the sole holder of such data.
• Section 23 (3): Contractors and subcontractors are prohibited from retaining data without GNPC approval, which may hinder their operations.
• Section 23 (6): Allows for duplicate records outside of Ghana, which may be problematic.
• Section 23 (16): The share transfer restrictions are incompatible, as a 5% interest may be combined to reach a controlling stake.
• Section 23 (18): Contractors are responsible for pollution and damage, but the mitigation obligations are not clearly defined.
• Section 24 (2): Domestic supply obligations are not addressed, which is a critical aspect for energy security.
• Section 31 (1) (d): The Ghana Cedis is incorrectly defined, and the fines are too low to serve as a deterrent.
• Section 33: Defines affiliate as any entity with a 5% or more stake, which is inaccurate as a 5% interest does not imply control.
• Section 33: Defines production as recovery, not extraction, which is a more accurate term in the context of oil and gas operations.

Deficiencies in the Law

The review identified several deficiencies in the current legal framework:

1. Block delimitation rules are not clearly defined.
2. Graticulation of blocks is missing.
3. Geodetic datum for petroleum operations is not specified.
4. GNPC's role is overly extensive, especially as the sole vehicle for exploration, development, and production, which is no longer appropriate with the onset of oil production.
5. The law needs updating to reflect the current government structure and legal references.

Recommendations

• Reinsert Section 31 into the amended law to address offences against the Act.
• Amend references from "Secretary" to "Minister" in relevant sections.
• Revise Sections 33–36 to align with current practices and definitions.
• Clarify definitions of key terms such as "land", "commerciality", "affiliate", and "production".
• Ensure the law is updated to reflect the current government and legal framework.
• Address domestic supply obligations and block delimitation in the regulatory documents.
• Improve the clarity and flexibility of the regulatory framework to accommodate rapid sector developments.

Conclusion

The report highlights the need for a comprehensive and flexible regulatory framework to support the sustainable and beneficial development of Ghana's oil and gas industry. It recommends legal clarity, enhanced accountability, and alignment with the National Energy Policy to ensure that the country maximizes the economic and social benefits of its hydrocarbon resources.