September 12,2017 Source

Dear Editor,

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 employee 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 Guyana 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 authorizes 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.

Yours faithfully,

Mohabir Anil Nandlall, MP