-Onyekachi Onuoha PhD
Nigeria has explored oil resources for over six decades. Petroleum resources provide over 90% of Nigeria’s export revenue and has remained the largest industry of the economy in terms of revenue generation. Apparently, the indicators of the Nigerian budget are predominantly drawn from the anticipated cost of a barrel of crude oil and our production capacity. A number of laws and regulations exist in different dimensions to regulate what happens in the industry, though many of them are now very obsolete. It is interesting to note that there is no robust, comprehensive and omnibus Act in the Petroleum sector to provide the requisite regulation of the upstream, midstream and downstream sectors of the petroleum industry. This is the gap that the Petroleum Industry Bill (PIB) seeks to achieve. The Bill addresses regulatory loopholes in the industry, allowing for improved governance and regulation spectrum, improved exploration environment also beneficial to host communities, infrastructural development of these communities, and enhanced fiscal returns, among others.
The passage of the PIB is expected to drive reforms by strengthening governance institutions, establish a strong regulatory framework, ensure transparency and accountability in oil and gas resource management and promote sustainable development. Amazingly, the PIB has been one of the longest existing bills in the Nigerian legislative history as it has been an ongoing conversation in the last 20 years. In the 8th national Assembly the bill was disaggregated into four bills. Three of the four were not passed by the National Assembly while only one which was the Petroleum Industry Governance Bill was passed but denied assent by President Muhammadu Buhari.
The long delay in the passage of the bill is caused by the vested interest of various stakeholders including the regulators (powers and responsibility), operators and oil marketers (Royalty and fiscal issues), host and impacted communities (environmental issues, developmental funding, etc). It must be noted that these differences cannot be holistically settled, a stakeholder parley is essential for finding a common ground. A further delay of the passage of the PIB is far from being an option as the Nigeria Extractive Industries Transparency Initiative (NEITI) had stated that Nigeria recorded losses to the tune of $200 billion for failing to pass the bill.
In view of the overarching benefits of the bill, a number of civil society organizations including Connected Development (CODE), FOSTER, OXFAM, BudgIT, CISLAC, Centre LSD among others have increased advocacy for the reintroduction of the bill and recently the bill has now been reintroduced into the national Assembly as an executive bill following this advocacy that seeks a participatory and speedy process. In order to make the process more participatory, a public hearing on the bill was scheduled for the 27th and 28th of January, 2021 for cogent inputs by all stakeholder.
In the midst of the expectation of passage and assent to the bill, there are clear observations;
The Expectations of the Petroleum Industry Bill
The Petroleum Industry Bill is expected to repeal upto 17 Acts and provide a new framework for natural resource governance especially in the petroleum industry. The bill proposes the creation of the Nigeria Upstream Regulatory Commission (The Commission) which will act as the regulator of the upstream sector and the Nigerian Midstream and Downstream Petroleum Regulatory Authority (The Authority) functioning as the regulator of the midstream and downstream sectors of the petroleum industry. It is anticipated that the creation of the Commission and the Authority will provide better enforcement of standards to streamline inter agencies’ responsibility.
The recommended replacement of NNPC with NNPC Limited seems to be a good step to make it more efficient strictly as an operator with no form of regulatory role directly or indirectly. The introduction of Environmental Remediation Fund as a condition for the grant of license and prior to the approval of environmental Management plan is very commendable, though the approach is not inclusive of host communities.
The prohibition of flaring or venting of natural gas with fines not subject to tax deduction appear attractive to discourage gas flaring however there are stipulated exceptions for condoling gas flaring. The Host Community Development Trust requires oil operators (settlers) to contribute 2.5% of their actual operating expenditure yet this has been defaulted, worse, host communities have become mere spectators.
It is very interesting to note that the price fixing powers of the Minister of Petroleum Resources no longer exist under the PIB 2020 which suggests a progressive move towards full and honest deregulation of the downstream sector. The powers of the minister to grant and revoke prospecting licences and Mining Leases exercisable solely by the Minister can only be done under the PIB by the recommendation of the Commission. This has the tendency of promoting due process and forestalling corrupt practices similar to the Malabu Scandal.
Effect of the Passage of the PIB on the Petroleum Downstream Sector
The PIB will have a far reaching effect on the downstream sector.
1. The removal of the powers of the Minister of Petroleum Resources in the PIB from fixing prices of petroleum products suggests an end to at least petroleum import subsidy regime.
2. The PIB passage is likely to provide the much needed legislative framework for a compressive deregulation of the petroleum downstream sector.
3. The PIB will increase the appetite of oil marketers to invest in the digitalisation of their vital downstream assets.
4. In line with the proposed establishment of “The Authority” to take charge of the regulation of only the midstream and downstream sector, “The Authority” should be more responsive in discharging its duties and strengthening regulations.
Concerns of the Petroleum Industry Bill
There are several concerns of the Petroleum Industry Bill which have been highlighted by various stakeholders. These areas of concerns include;
Host Community Development Trust: In establishing and registering the Trust, there is no reference at all to communities. The job of identifying who a host community is, lies with the oil company (Settlor). Why not the federal and state government? This has a potential for conflict?
The Holder (oil and Gas Company) selects members of the Board of Trustees (There is no provision or requirement for appointing locals or members of the host communities which means the lack of participation). The implication of this is that it places the power and the mandate for the development of oil producing communities in the hands of the oil companies, allowing the government to abdicate their responsibility. This could create additional grounds for conflict.
The Board of Trustees establishes a Management Committee which is required to have only one community representative who shall be a non-executive member of the management committee. This is gross under-representation for the host community
Forfeiture of contribution to the Host Community Trust Fund: Section 257 (2)- forfeiture of contribution to the Host Community Trust Fund as a result of vandalism, sabotage or other civil unrest. There should be a clause to indicate that such vandalism, sabotage or other civil unrest were caused by the host community as established by the commission. It should therefore be re-written thus;
“Where in any year, an act of vandalism, sabotage or other civil unrest caused by the host community as established by the commission which occurs that causes damage to petroleum and designated facilities or disrupts production activities within the host community, the community shall forfeit its entitlement to the extent of the cost of repairs of the damage that resulted from the activity with respect to the provisions of this Act within that financial year”.
Application of the New Fiscal regime: The new fiscal regime would not apply to the companies already in operation until the renewal of the existing Oil mining Leases (OMLs) and Oil Production Licenses (OPL) or the execution of a new one. The state of affairs in the country requires that the current licenses would be made subject to the PIB when passed rather than remaining under the obsolete PPT Act.
Host Community Needs Assessment: The holder (Oil and gas Company) carries out needs assessment of needs for communities. This is a recipe for conflict especially where there are conflicting needs. While the needs assessment is required to have an ‘environmental perspective’ the details show only interest in benefit transfers and not environmental protection.
Flare Gas Data Log: The PIB as it is, does not necessarily recommend commensurate punishment for flare gas data log offenders. It merely recommends a fine of extra $2.50(US Dollars) per 28.317 standard cubic meters for an offender who is found guilty of supplying false data or fails to supply such data. This recommended fine is by all standards marginally low.
Gas Flaring: The provision for gas flaring in the bill is still very small when compared to the impact of the offence on the environment and lives of people. This implies that the provision prefers the payment of fines to a demand to end flaring. Obviously, the operators will still prefer to flare gas and factor in the penalty as a component of their operating cost as it were.
Licence and Lease: A licence or lease may be granted under this Act only to a company incorporated and validly existing in Nigeria under the Companies and Allied Matters Act. We need to add here that; companies who sub-let such rights or contract to other non-registered companies in any of its value chain will be liable to forfeiture of their licenses.
Gas Utilisation Incentive: Companies operating in this sector should be ineligible for pioneers status incentives (PSI), which confers the benefits of a tax holiday (amongst others), the associated cost and administrative inconvenience of processing the PSI may make the Gas Utilisation Incentive (GUI) more attractive.
CSOs must take the responsibility of critically studying the PIB to identify all the areas of concerns of all the stakeholders so that their expectations are aptly captured in the PIB and all stakeholders have commitment to the bill. Although many CSOs have worked tirelessly on the PIB and t have been stretched over the years especially because of the delay of the bill, we must find new strength; we all need to see it passed. We must stay focused and follow the bill through at the National Assembly so that we don’t sacrifice quality at the altar of speed.
The passage of the bill is a great step in the right direction for the requisite reform of the petroleum industry, however when it is passed and assented to, ensuring comprehensive implementation is imperative to take care of the governance spectrum, environmental issues and fiscal matters in the industry.
Onuoha, Onyekachi Chibueze PhD