UK: ENeRgize - Energy And Natural Resources Update - Spring 2014

Last Updated: 17 June 2014
Article by Clive Hopewell, Mark Howard and Malcolm Dowden

This Spring edition of Energize demonstrates the diversity of our cross office and cross disciplinary ENR practice; from mining in Saudi, to onshore oil and gas drilling in the UK, to smart cities worldwide.

I have just returned from Houston, Texas, where I was attending the Annual Oil & Gas practice Group Meeting of our legal network, ALFA International. The principal subject of this year's meeting was shale gas drilling and production. Fracking is nothing new to Texas and the process was invented there in the 1950s. Nor is it particularly controversial. The key concern of the North American delegates was the huge pressure on infrastructure by the abundance of shale oil supply and the need and benefits of more pipeline development, including the controversial Keystone XL project.

This contrasts starkly with the situation in the UK where we are still at the drawing board in relation to shale oil & gas exploration. However, pressure is mounting for legislative reform to kick start the onshore shale industry. As Lord MacGregor (Chairman of the House of Lords Economic Affairs Committee) concluded in its recent report on the shale opportunity in the UK; "The Committee strongly supports the decision to go "all out for shale"(...) Developing a successful shale gas and oil industry should be a national priority."

My partner, Mark Howard, discusses the challenges currently facing onshore drilling activity in the UK in his article below.

We hope that you find this Spring edition of ENeRgize of interest and do contact any member of the team should you wish to discuss any of the articles or any of the services the team offers.

DEVELOPMENTS IN MINING IN SAUDI ARABIA

By Clive Hopewell

The article below was first published in "Materials World" in January 2014

The Kingdom of Saudi Arabia may be renowned for its vast reserves of 'black gold', but it is by no means the only variety of 'gold' beneath its deserts. The country benefits from an abundance of mineral reserves, which it has increasingly sought to exploit as it looks to diversify its oil-dependent economy. Exciting developments are gathering pace, bringing a fresh wave of opportunity to the mining sector.

Past Developments

From its inception in 1932, the modern Kingdom of Saudi Arabia has looked to capitalise upon its bountiful natural resources. Following a government commissioned geological survey, both oil and gold were discovered in the country.

Whilst the former has been at the forefront of the Saudi economy ever since, the latter has, until recently, remained largely peripheral.

The same can be said for much of the Kingdom's mineral wealth. The country contains large deposits of not just gold, but bauxite, silver, copper, iron, tin, zinc and lead, as well as non-metallic minerals like phosphate and tantalum. Although there has been plenty of exploration undertaken (spearheaded principally by the Deputy Ministry for Mineral Resources ('DMMR'), the state regulator of the mining sector), there has been correspondingly little in the way of extraction and processing. Some public-private partnerships have arisen over the years, but this has not precipitated much growth in the domestic mining industry.

Nonetheless, this has begun to change with the advent of the Saudi Arabian Mining Company, Ma'aden. Established in 1997 by the government, Ma'aden is responsible for regulating mineral exploration and mining. It has acted as a catalyst for investment and delivered vital commercial impetus to the mining sector, particularly following Ma'aden's partial privatization in 2008. In its brief history, it has pursued strategic partnerships both at home and abroad, with the aim of exploiting what has already been explored and discovered. Much of its work has entailed creating the necessary infrastructure that can facilitate extraction and processing, as two of its current flagship projects demonstrate.

Current Developments

(1) Al-Zabirah Mine (Bauxite)

After discovering significant deposits of bauxite in north-eastern Saudi Arabia, Ma'aden has formed a $10.8 billion joint venture with America's Alcoa to create what it describes as 'the largest and most efficient vertically integrated aluminium complex in the world.' It is envisaged that ultimately the mine will produce 4.0 million tonnes of bauxite per annum, which will then be transported around 600km by rail to a processing plant, in order to be refined into alumina. The 1.8 million tonnes of alumina generated will then be smelted to produce 0.74 million tonnes of aluminium. Up to half of this aluminium can then be processed by an adjacent rolling mill to produce 'sheet, end and tab stock for the manufacture of cans and other products including auto, construction and foil applications.'

At present, the refinery is still under construction and is expected to be completed in 2014. In the interim period, alumina is being supplied by Alcoa (via import) for smelting. Once the complex is fully operational and thus integrated, it is anticipated that the aluminium produced will undercut global prices and thus be much sought after by the markets.

Ma'aden is responsible for implementing the project infrastructure. This extends beyond mining operations per se and encompasses an ambitious cooperative project with Saudi's water and electricity utility companies, whereby the parties are developing a joint power and desalination plant. This will fulfil the daily water and electricity requirements of the aluminium complex, whilst the surplus will be supplied to the national grid.

(2) Ad'Duwayhi Project (Gold)

Gold, for obvious reasons, has been a key focus for Ma'aden. Saudi Arabia has significant deposits, particularly in the 'Nubian shield': a rich seam of gold either side of the Red Sea. In addition to five existing mines, it is currently developing two more sites, including one at Ad-Duwayhi. Mining and milling operations will be employed, with the resultant gold to be transported south to Jeddah, 450km away. Flowing in the opposite direction will be treated water from the Red Sea, courtesy of a 500km pipeline, that will also service other nearby mines and facilitate mining operations.

(3) Red Sea Exploration

It is not just water that Saudi Arabia may soon be extracting from the Red Sea. In conjunction with Sudan, mining for minerals such as gold, silver and copper is scheduled to commence on the seabed by 2014. Although the existence of deposits was first confirmed in the middle of the twentieth century, only in 2010 was a licence obtained for mining, awarded to a joint venture between Saudi and Canadian companies (the latter acting on Sudan's behalf). Further exploration is ongoing, but recent core samples have revealed the presence of silver, zinc and copper.

Joining the Goldrush?

Recent progress in the mining sector of Saudi Arabia is merely a foretaste of things to come, as the government's policy of diversification continues to take shape. Between 2010 and 2012, revenues from non-petroleum mining rose nearly 17%. There has been an almost exponential increase in mineral exports since the turn of the century, with exports of base metals quadrupling and exports of precious metals increasing a hundredfold. The government continues to invest heavily in the mining sector, providing tax incentives and improving infrastructure.

Clearly, opportunities abound as the Kingdom seeks to capitalise upon its bounty of mineral resources. Entry into this potentially lucrative market is conditional upon obtaining a licence. These are issued by the Ministry of Petroleum and Mineral Resources (of which DMMR is an offshoot) in accordance with the government's Mining Code, and can relate to exploration and/or exploitation. Mining licences enjoy several perks: there are no royalties payable, no import duties on imported mining equipment and no surface rental for exploration licences. Moreover, although restricted in duration to thirty years, they are renewable.

Points for Consideration

Opportunities undoubtedly exist in mining, but there are risks and challenges too. The aforementioned licensing scheme has become increasingly unwieldy. The Ministry's right to remove inactive licences is rarely employed and is a hollow gesture that has done little to dissuade passive speculators domestically.

Expertise and infrastructure can also prove difficult to access, though this tends to be a geographical issue. Finally, mining represents a tiny proportion of Saudi's economy. Despite growth within the sector, its overall size within the country's GDP has actually fallen from 0.4% to 0.3% in the last couple of years. At this stage, there is still some way to go for mining to become the 'third pillar' in the national economy (after oil and petrochemicals) , but the will is certainly there and the mining sector is displaying positive signs of growth.

ENERGY SECURITY AND DRILLING RIGHTS

By Mark Howard

Vast tracts of land are already nominally under licence, though the licence-holder often lacks the wherewithal to maximise its use. Therefore, joint ventures with state-owned operators are, in practice, the optimum way into the Saudi mining sector.

The March 2014 Ukraine crisis has once again focused European attention on the risks of excessive reliance on Russian gas supplies. Since 2003, European Union member states have gradually reduced their dependence both on Russian gas and on the Ukraine as a route for gas pipelines. Europe now imports just under 30% of its gas from Russia, compared with 45% in 2003. Improved infrastructure also offers alternative routes, such as the Baltic Nord Stream pipeline, and greater resilience. Nonetheless, a 10% increase in gas futures prices in immediate response to the Ukraine crisis must add to pressures on the UK and other governments to promote energy security as a major policy objective. While there are some significant alternative energy projects in distant prospect, such as the Swansea Bay Tidal Lagoon project, for which planning consent was sought in February 2014, fossil fuels remain an essential element in the UK's energy mix. The UK government faces a significant difficulty in that debates about the exploitation of onshore oil and gas reserves have been dominated by controversies and public concerns about the extraction of shale gas by means of hydraulic fracturing - or "fracking". Fracking involves drilling boreholes several kilometres deep and then pumping fluid at high pressure into rock strata to create narrow fractures from which gas can escape. British Geological Survey estimates, revised in June 2013, suggest that economically exploitable shale gas reserves within the UK might be sufficient to meet domestic demand for more than 40 years.

Public and media concern has focused on the possible risks of fracking, including contamination of ground water, environmental damage and possible seismic activity. Indeed, the UK government put a moratorium on fracking activities in 2011 following traces of seismic activity which were initially linked to fracking activities near Blackpool. The moratorium was lifted in December 2012 after geological reports suggested there was no such link. Nonetheless, campaigning environmental groups such as Greenpeace have asked for thousands of people to join in a "legal block" – essentially creating a patchwork of "no-go" areas across England intended to impede or to prevent large scale fracking. Although directed primarily at fracking, public campaigns tend not to distinguish clearly between fracking and conventional onshore drilling, with the result that protest and controversy tends to cluster around any onshore energy project.

What is the legal basis for the Greenpeace campaign?

Although the Crown owns oil and gas reserves, ownership of the strata through which drilling must pass to access those reserves generally goes, at whatever depth, with surface ownership of the land. That principle was confirmed by the Supreme Court in Bocardo v Star Energy [2010] UKSC 35. The result is that rights to access reserves require not only a licence from DECC but also agreement with surface landowners - potentially running into the tens or even hundreds.

The planning regime has also developed in response to increased onshore oil and gas activity. In particular, DCLG guidance issued in July 2013 confirmed that where directional drilling is to take place underground, planning applications must include a map showing the areas within and beneath which that directional or horizontal drilling will take place. That guidance, based on legal advice obtained by DCLG, prompted a change in industry practice which had previously tended to include within planning applications only the well pad, surface works, traffic and local amenity measures. One consequence of the recently confirmed need to show the area of underground drilling is that it significantly increases the risk of objections from surface owners during the planning process.

Taken together, the need for surface owner agreement and the increased likelihood of planning objections have generated significant delays and additional costs not only for fracking operations but also for conventional drilling projects.

From an operator's perspective, there is no easy or inexpensive route from the initial licence to drilling, whether for exploratory purposes or production. The period between the grant of a licence and any significant activity on site can easily run into several years.

Applying for ancillary rights

Sections 3 and 4 of the Petroleum Act 1998 (the "1998 Act") provide that the Secretary of State (on behalf of the Crown) has the power to grant licences to bore for shale gas and other oil and gas reserves in Great Britain. The award of licences is discretionary and they are generally issued over large areas granting exclusivity to operators in particular locations. However, whilst the grant of a licence to the petroleum licence holder by the Secretary of State entitles the licensee to "search and bore for" petroleum or gas, it does not entitle a licensee to access a property without the landowners consent to search for and/or extract shale gas.

In order to obtain the additional rights which the licence holder will need in this respect, the licence holder must first seek to negotiate with the landowner on a private treaty basis in order to secure any additional rights required (the negotiations could, for example, include a payment to the landowner for any inconvenience).

If no agreement can be reached, the licence holder has no option but to apply for ancillary rights under the compulsory purchase scheme prescribed by the Mines (Working Facilities and Support) Act 1966 (the "1966 Act"). This enables the licence holder to apply for a court order granting the rights and easements required, including a right to enter onto land and sink boreholes in the land, erect buildings on the land and to lay pipes on the land.

The grant of rights is not a foregone conclusion. The initial application is to the Secretary of State. Unless satisfied that there is no prima facie case for the grant, the Secretary of State must refer the matter to the court - meaning, in this case, the Chancery Division. The court's power to make an order is limited by section 3 of the 1966 Act. The court must be satisfied that:

  • the grant of the right is expedient in the national interest, and
  • the applicant can show that it has not been possible to obtain the rights by private arrangement (for example because the person with the power to grant the right has refused to grant it or demands that the rights be granted on terms which are not reasonable), or
  • the persons with power to grant the rights are "numerous or have conflicting interests"

In practice, it is easier to meet the section 3 test where there are several surface landowners, particularly where they are likely to take differing views towards the project. Where there is only one landowner the applicant must show that commercial negotiations have been pressed as far as possible. Where there are numerous landowners, it is probably enough to show that negotiations would be protracted or difficult rather than having to show that they had run their course. However, even where the involvement of numerous landowners provides a more straightforward route to court, the process remains slow and costly. An application might easily take up to a year to come to a hearing, and it is quite possible that the court would be inclined to let objectors have their day in court.

If rights are granted by the Court, it will be on terms which should include payment by the licence holder of "fair and reasonable" compensation in a sum to be determined by the Court, with a statutory uplift of 10% directed by section 7(4) of the 1998 Act.

Whether or not the grant of ancillary rights is in the national interest is of course a highly topical question. The Government intends to exploit the UK's potential reserves of shale gas, especially in view of the current reliance by the UK on the import of gas – the UK is said to import around 80% of its gas whereas it is estimated that around 10-15% of the UK's shale gas reserves would be sufficient to meet the gas needs of the UK for more than 40 years. Given the renewed sense of insecurity stemming from the Ukraine crisis, that degree of prospective energy security must be at least highly persuasive.

Companies looking to search for and extract shale gas have generally not tended to use compulsory powers, instead opting to negotiate terms with the landowner once licensed by the Secretary of State. However, high levels of public concern about, and opposition to, fracking schemes has also extended to conventional projects. Unless the UK government progresses its broad proposal, made in February 2014, of relaxing or removing the need for surface owner agreement to directional drilling at depth, it is likely that licence holders will be compelled to consider 1966 Act applications as the only viable - though slow, expensive and uncertain - way to overcome strong and concerted local opposition to projects.

SMART CITIES: THE END OF PRIVACY OR THE KEY TO ACTIVE CITIZENSHIP?

By Malcolm Dowden

2014 promises to be the "year of the smart city". With World Cup host Rio de Janeiro winning the World Smart City Award 2013, media coverage is likely to spur on similar initiatives around the globe. Inevitably, concerns about "data mining", privacy and civil liberties loom large. How real are those concerns? Are "smart cities" likely to be a dystopian surveillance state, a honey pot for cybercrime or a goldmine for market researchers?

There is no single model for a smart city. Projects seek to harness technology to make cities more "liveable" and resilient. For Rio, the priority was to establish a "mission control" to monitor and allow swift response to infrastructure problems, power failures, extreme weather or law enforcement issues. For others, such as Shenyang in China, "smart" relates primarily to environmental performance, focusing on energy generation and consumption, water and waste management.

In even more sophisticated models, piloted in Stockholm and Dublin, real-time data produce a dynamic map of human behaviour, revealing the city's needs and pressure points and allowing authorities to plan and refine infrastructure and service provision.

The common factor, though, is the central role of electronic communications, data-mining and data-analytics. Information is both the crucial enabler for smart cities and, arguably, their point of greatest vulnerability.

Data: the price of progress?

Interconnectedness between the private sector, local authorities and individuals is a central part of the "spirit" of a smart city. The UK's Department of Business, Enterprise and Skills (BIS) described it as "enabling and encouraging the citizen to become a more active and participative member of the community, for example providing feedback on the quality of services, the state of roads and the built environment". In Rio, citizens can highlight a problem, from potholes to pollution, simply by taking a picture of it on their smartphone and uploading it.

Even when they are not purposely uploading data, citizens are constantly giving up information about their movements, activities and economic choices. RFID devices such as travel cards log data about individual movements, readily supplemented by data from mobile phone base stations that can also identify factors such as the angle of arrival into a cell, dwell time and even purchasing choices. Add to that the constant stream of CCTV images and an exceptionally detailed picture of individual life can be constructed. Apply analytics to that data and it is possible to build an actionable picture of collective life, allowing authorities to move towards the "liveable" city.

To date, the focus has tended to be on gathering rather than protecting data, though data security must emerge as a central concern of governments, municipal authorities and individual citizens. Information held by authorities offer a vast honey pot to cybercriminals and "hacktivists" and place a significant burden of responsibility on governments.

In October 2013 BIS listed trust in data privacy and system integrity as a barrier to smart city projects. However, it offered no solutions, merely reciting that "good cyber security implementation will be essential: and clear communication with service users about how data about them is used and protected, and how the use of that data benefits them, will help build trust". That reads as an aspiration rather than as a plan.

Equally significant is the potential for authorities to succumb to the temptation to regard data as commercially exploitable. Smart city projects are expensive, so it is a logical enough step to seek access to private sector funds otherwise than through taxation. However, the already fragile confidence in government handling of information is easily dented by controversies such as the UK's NHS Care.data project, delayed when it emerged in February 2014 that hospital data had been given to the insurance industry and used to assist with the pricing of its products.

Big Brother or BigCo?

While authorities seem to accept that there is a need for cybersecurity to combat malicious activities, it is less apparent that there is any clarity of thought when it comes to defining the legitimate use of data gathered by those authorities. In Europe, and other regions with similar data protection laws, the key battleground is likely to be the definition of "personal" data relating to identified or identifiable individuals.

Determining whether something is held as "personal" data is not always easy. The UK's Information Commissioner has published 30 pages of guidance on the question. It identifies several borderline cases, where the same information could fall either side of the line. For example, a photograph of a crowd taken by the police to identify troublemakers should a riot erupt would be personal information. The same photograph taken by a photo-journalist with no intention of identifying individuals would not. Anonymous or anonymised data, packaged and passed on or sold for statistical purposes, may not be personal data unless it includes elements such as code numbers that could be used to identify individuals.

Historically, information gathering has often turned rapidly to commercial gain. The UK's Mass Observation project set up in 1937 to produce an "anthropology of ourselves" unsurprisingly became, by the 1950s, a market research company. Information is not only power, it is value. Even if governments adequately address the risk of malicious access, smart city projects are likely to face and seek to find ways around legal restrictions on data processing and disclosure. The issues will be extremely complex. Individuals often click through screens requiring agreement to terms and conditions including the sale of data, to get to the product or service they require. From a government perspective, disclosure of personal information might easily be regarded as fair exchange for improved services and "liveable" cities, with at least some costs being recouped by selling information to the private sector. The debate is not about narrow regulation, but about the extent to which any concept of data privacy ought to yield to a greater need to address the stresses and resource-hunger of modern urban life.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Clive Hopewell
Mark Howard
Malcolm Dowden
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