- Extractive Industries, International Transparency, and Royalty Management Efforts
- August 5, 2011 | Author: Jeffrey H. Perry
- Law Firm: King & Spalding LLP - Washington Office
International efforts to alter royalty regimes in developing and resource-rich nations, combined with corporate social responsibility (CSR) efforts of oil, natural gas, and mining companies can pay dividends in investment sustainability.
Extractive Industries Transparency Initiative (EITI)
The Extractive Industries Transparency Initiative, the formation of which was announced in 2002 by then-British Prime Minister Tony Blair, seeks to require disclosure by natural resources companies and governments of certain payments in order to heighten public awareness, and promote more equitable dispersal, of resource extraction payments to the inhabitants of developing countries.
The EITI is a voluntary coalition of oil, natural gas, and mining (OGM) companies, foreign governments, investor groups, and international organizations such as the World Bank Group, who are committed to fostering and improving revenue transparency and accountability in resource-rich countries.
OGM companies and governments agreeing to follow the EITI process agree to publish what they pay for and receive from extractive activities. The process includes a validation component where company payments are matched with government revenues by an independent auditor. The EITI's hope is that disclosure will strengthen broader public financial management along the whole extractive industries value chain.
Dodd-Frank's Payment Disclosure Provision 
A relatively unheralded provision of the Dodd-Frank Act requires SEC-regulated OGM companies to disclose information on payments made to a government in connection with activities that run a gamut from exploration and development to extraction, processing, and export.
Specifically, Section 1504 of the Act applies to “resource extraction issuers” that file Form 10-K, 20-F, or 40-F annual reports, requiring them to disclose, in those annual reports and electronically, certain information regarding payments to either the U.S. government or a foreign government for the purpose of the commercial development of oil, natural gas, or minerals.
The SEC is due to issue final rules interpreting Section 1504's requirements as soon as this month. According to the proposed rules, a “foreign government” includes a department, agency, or instrumentality of a foreign government, or a company owned by a foreign government. It is unclear whether the final definition of foreign government will include a foreign subnational government, such as a state, province, county, district, municipality, or territory.
Local Royalty Management 
The effective transfer of royalty income from central governments to municipal governments, concurrent with efforts to build the capacity of a community to manage the funds, has been shown to greatly improve a company's “social license” to operate in the community, lessen the company's business risk, and ensure the sustainability of its investment. Peru and Columbia, for example, have directed millions of dollars in royalties to municipal governments in mainly rural areas. However, local governments often do not have the capacity to invest revenues in projects that provide sustainable benefits for residents. In addition, local communities are often unable to provide input, or monitor investment activity, let alone hold local authorities accountable for their expenditures.
A key goal of the transparency initiative is to empower local populations and leaders to demand good governance and accountability from authorities by reducing barriers to access to information through traditional media and the internet, as well as building effective management capacities in key stakeholders.
This goal can be accomplished through various means, but an emerging area is the formation of public-private partnerships (PPPs) to address situations where local governments do not have the capacity to manage local royalties effectively. The OGM industry has been at the forefront of these efforts and, though gains can be difficult to quantify, companies report impressive local results that range from increased access to, and improved, services; to behavioral changes in key stakeholders, such as civil society organizations, media, and municipal authorities.
“Mining companies are increasingly aware of the importance of sustainability to investors and shareholders, and the advantages it can bring, such as increased profitability.” 
Over 30% of mining company respondents to a recent survey view sustainability as more important post-recession.  This view is attributed to a number of factors, foremost among them being government legislation and the increased significance of sustainability among shareholders and investors. Respondents predict 5-10% increases in corporate sustainability budgets in the next year in response to reasons such as legislation, compliance, and managing corporate reputation. As a result of the recent recovery of commodity prices, respondents indicate that mining companies are better able to invest in sustainability measures. Boards of Directors are considered by half of the respondents to be the most important factor behind corporate sustainability efforts and are viewed to be driving a trend among some companies toward including sustainability measures adopted for long-term benefits in their strategic plans.
 For further information on Section 1504, please consult King & Spalding’s Client Alert at http://www.lexology.com/r.ashx?l=7FNG2JN.
 International Finance Corporation, Sustainability Exchange: Approaches to Improve Local Royalty Management to Benefit Communities, Washington, D.C. (June 28-30, 2011).
 “Buyer Sustainability Management in the Mining Industry 2010/12” (July 18, 2011), available at http://www.infogrok.com/index.php/construction/buyer-sustainability-management-in-the-mining-industry-2010-12.html .