PRODUCTION SHARING AGREEMENTS VERSUS THE ROYALTY REGIMES: WHERE IS THE BALANCE?

Abstract

For many years the mining industry made its investment decisions safe in the knowledge that petroleum or minerals in the ground belonged to the State but upon severance of such petroleum from the ground the oil was vested in the miner. Commensurate with the ownership changing, a royalty was payable to the government at a fixed rate. With the enactment of the Petroleum (Australia-Indonesia Zone of Co-Operation) Act of 1990 (the 'Act'), serious consideration must now be given as to whether in the future this basic scheme may be dramatically and radically changed to a scheme based on a services contract whereby a certain percentage of the oil is paid in consideration of the miner 'managing the discovery and extraction of petroleum'.An increasing number of countries, including those such as Malaysia which have legal systems based on common law, have adopted petroleum sharing agreements as a basic method by which they 'encourage' petroleum exploitation. This paper:explores the major features of petroleum sharing agreements (which are now in use in the Timor Gap, Indonesia and Malaysia), and compares and contrasts those models with a regulatory scheme based on statutory leases with royalty payments (being the regulatory scheme used in Australia, New Zealand, Canada and elsewhere);reviews both the economic and legal consequences of the two regimes, assuming a constant Income Tax System.It concludes that whilst there are certain merits in both the royalty regulatory type regime and a production sharing regime it appears to the writer that on balance the royalty regulatory regime is much more beneficial to the industry than the alternate. This is particularly true given the fact that Australian governments generally should have sufficient confidence in their regulatory skills and Australian technology that it does not feel it necessary to be given a veto power for each and every decision made in respect of petroleum exploration or production.The major deficiencies of a production sharing arrangement are the fact that the risk taker does not obtain legal tide to the product until after it has either passed the point of tanker loading or been sold to some third party, and the concept of 'cost oil'. If the rates of government 'take' is so high that it is more profitable to obtain 'cost oil' for the company than to receive its 'share' under the production sharing agreement, then the petroleum industry as a whole will suffer gross inefficiency in that area.