The history of commercial petroleum in federal systems is, in significant part, a history of intergovernmental conflict (Fitzgerald 2001; Laendner 1993; Hunt 1989). It has pitted national governments against provinces and states, and provinces against one another, in struggles over issues of jurisdiction, resource ownership, fiscal policy, environmental security and domestic industrial and employment benefits, to name only the most prominent. What began on land has carried over to the water, where Washington faces coastal states from Maine to Alaska, and Ottawa faces provinces from Newfoundland to British Columbia. A similar dynamic occurs in Australia (Cullen, 1990; Haward, 1989). In such cases, there seems to be a strong proclivity for constitutional litigation, in which central and regional governments advance sovereign claims which are determined by judicial review. In the US, Canada and Australia, central authorities emerged legally dominant from this phase. Supreme Courts generally found the national case for sovereign powers over continental shelf resources to be superior to provincial and state arguments for historic (colonial) entitlements.
In the opening decades of offshore petroleum (1950-70), such jurisdictions may well have appeared to be self-contained and exhaustive. That is, all political questions pertaining to offshore petroleum were considered to fall under national jurisdiction. If continental shelf regions were valued economically for their petroleum reserves alone, this arrangement might have been sustained indefinitely, with federal authorities administering leases, collecting royalties and regulating extractive projects in much the same way as did Texas and Alberta on land. However the very fact of ocean jurisdiction introduced complicating factors. One was the presence of coexisting and potentially rival industries, such as fishing, marine transport and coastal tourism, which had substantial (and historically prior) claims to ocean use (Doyle 1978; Goldstein 1982). Their effective political mobilizations not only challenged offshore resource administrators to expand their policy repertoires, but they also provided provincial and state authorities with avenues to reassert an offshore presence. The fishing resource offers a prime example. Apart from the internal waters of bays, estuaries and the coastal strip, Canadian provincial involvement in marine fisheries centres on land-based processing and sale (Pross and McCorquodale 1990). However this has been more than sufficient to enable provincial authorities to champion the economic interests of their fishing sectors in the face of risk or threat from oil interests. On the Atlantic coast, fisherman compensation programs for oil and gas disruption became pressing concerns following the Hibernia and Sable discoveries of the late 1970s (Heber 1986). Moreover, once the joint federal-provincial management board structure emerged, in 1982, the provinces enjoyed direct leverage over key petroleum management decisions, by virtue of the ministerial veto. Thus Nova Scotia was able to trigger, unilaterally, the 1987 moratorium on petroleum exploration on Georges Bank, in the name of protecting one of the region's richest fisheries (Baetz 1993).
Another key political conditioning issue was the heightened awareness of ocean ecology beginning in the 1970s. This owed much to the damaging environmental episodes mentioned earlier, together with tanker spills, marine mammal welfare campaigns and a growing appreciation of the scale of shore-based pollution. The ocean commons were revealed as a profoundly complex yet fragile environment that was in desperate need of integrated and effective governance (Silva 1986). Here policy issues are linked, overlaps abound and intergovernmental and inter-agency conflicts are latent in all commercial and regulatory actions (Mann Borghese 1998; Wilder 1998). Such recognition hastened the breakdown of the traditional sectoral approach to ocean resources. Previously separate domains -- of oil, fish, transport, communications, parks and protection – are now increasingly aggregated, creating a new era of ocean politics. In Canada, the new guiding principles principles include ecosystem management, the precautionary approach, and integrated decision-making (Canada 2002). A new repertoire of policy instruments and planning tools is emerging, that includes coastal management areas, large ocean management areas, and marine protected areas.
While the institutions of ocean governance are still rudimentary, they do provide a new political space that is being actively contested by an expanding range of interests. The risks of this situation have not been lost on the offshore petroleum bloc, which recognizes the potential of holistic ocean policies to erode or even displace sectoral resource regimes (ACPI 2001; PRC 2002). Much will depend on how the existing regulatory arrangements are reconciled with new initiatives, and where the seats of ministerial and bureaucratic authority are lodged. As a result, the interface between the respective management regimes will be politically contested for the forseeable future.
State Strength and Capacities
Another key dimension of offshore politics involves the capacities of coastal states to manage hydrocarbon resources. On one level this invokes familiar analytic debates about strong and weak states, coherence and fragmentation, autonomy and permeability (Ikenberry, 1988; Fossum, 1997). Important as this is, it is a complex and intractable analytic problem. Part of the answer turns on properties of state management institutions (Clarke and McCool, 1996). Another part depends on the policy sub-sectors being assessed and the ability to aggregate these findings at a more general level (Andersen, 1993). A panoply of policy instruments figure in any effort at offshore management and while borrowing, learning and diffusion is common, any such configuration is a path-dependent construct.
Particularly intriguing, however is the application of this perspective to the offshore. In Atlantic Canada, for instance, a curious institutional hybrid has emerged over the past twenty-five years. Its roots lay in the federal-provincial disputes over offshore resource ownership and the stakes were exacerbated by the energy (OPEC) price spikes of the 1970s. As Atlantic offshore exploration began to yield significant discoveries (particularly the twin Hibernia oil and Venture gas strikes of 1979), the need to resolve uncertainties over state jurisdiction became more urgent, with industry interests hesitating to move forward so long as their tenures remained cloudy. It was at this point that the dual "ownership" dispute was transformed into a joint "management" regime, by virtue of a series of negotiated intergovernmental accords.
The concept of the joint federal-provincial offshore management board has a mixed provenance, originating in the 1970s. It is interesting to note parallel negotiations over power-sharing relations, at Aboriginal land claims tables and through co-management schemes put forward in other renewable resource fields (Clancy 1990; 1999). In petroleum however, the prototype was the tri-province Maritime Offshore Agreement of 1977. It was succeeded by the Canada-Nova Scotia offshore petroleum deal of 1982, which was transcended, in turn, by the 1985 (Canada-Newfoundland) Atlantic Accord and the revised Canada-Nova Scotia deal a year later (Crosbie 2003). Talks on a parallel Pacific Accord between Ottawa and British Columbia were underway after 1987 but halted, as mentioned earlier, with the decision not to lift the longstanding westcoast moratorium. However the prospects for inter-basin policy learning remain strong (House 2002).
Nevertheless, a new template for offshore management was established by the east coast accords - of jointly appointed petroleum boards supported by professional staff, exercising delegated regulatory powers under federal and provincial statutes and mandated to coordinate the essential administrative functions for the oil and gas sector. While the boards enjoy substantial autonomy as crown agents, they are responsible to designated federal and provincial ministers, who also exercise powers of review, confirmation and overide of select types of decisions through "an elaborate series of trumping arrangements" vis-à-vis the boards (Brown, 1991). At each level of government, a range of bureaux and agencies are bound into the board structure by formal memoranda of agreement, while industry and public interests seek access through a shifting network of advisory committees.
A plethora of research questions attend the joint board structure. How "open" is it to organized lobbies? Within its broad jurisdictional template, which are the formative or valence areas? How meaningful are the options for ministerial appeal and how have they been exercised? The capital-state bargaining literature certainly has a role to play here, particularly as petroleum basins have been developed, to date, largely on a "project" basis in which each sponsoring consortium advances an omnibus plan for public assessment and determination.
This highlights the question of issue boundaries and characteristics: In policy terms, how is the "offshore development" field most usefully delineated? Derek Fee advances the interesting concept of the "petroleum exploitation strategy". It consists of "those instruments, both legal and fiscal, that define the relationship between the state and oil companies involved in the petroleum exploitation process" (Fee 1988:32).
For Fee, this highlights the range of critical variables that need to be addressed in any new venture. Three elements -- the exploitation agreement, licensing policy, and taxation -- form the core of his approach. It is worth noting that this model was developed in reference to leading oil supply states during the OPEC era. A more nuanced version could presumably be developed for the separate category of offshore petroleum basins. Drawing on the Canadian experience, a survey of pertinent offshore management issue areas and instruments is presented in Figure 1.
Figure 1 Here
Each of these begs attention in its own right. As a group, however, they invite questions about how such target policy categories or fields are defined and how their boundaries may shift over time (multiplying or collapsing). As an example, consider the case of natural gas deregulation. During the late 1980s, by the initiatives of the Mulroney government, the western producing provinces and the National Energy Board, natural gas prices went from being closely regulated to being market driven. This was accompanied by a new role for pipeline carriers, from being merchant carriers of bundled gas supplies to selling a transit service in a flexible sales market between producers and final consumers. A longstanding edifice of sectoral regulation was dismantled and the structure of gas transmission and delivery was transformed. This constituted the most dramatic regulatory reorientation in decades. In key respects, however, it is incorrect to suggest that state oversight was abandoned here. While pricing and contracting were decontrolled, a variety of other regulatory layers remained in place, to ensure competitive dealing and social dimensions such as environment and safety. Doern and Gattinger describe this as a system of “managed competition” in which a coordinated regulatory regime disappeared while unconnected layers of special regulations remain stacked on the industry (Doern and Gattinger 2003). With sector relations now redefined, competitive forces set loose, the available policy instruments altered and the prospects for coordination reduced, the balance of state capacities has evidently changed.
Offshore Petroleum Regulation in the New Millennium
In the years since 2000, the offshore regulatory system has come under wholesale political challenge of a sort not seen for a generation. This is evident on all three coasts, though the configurations of players, interests and processes is distinct in each case. A common signifying theme, however, is that the offshore regulatory regimes -- those broad state structures of rules and values -- are past time for review and overhaul. While this case is advanced most frequently by offshore petroleum capital, it is not necessarily resisted by federal or provincial state agents, who themselves strain against strictures of the 1980s “joint” political settlement.
The case for regulatory change is quite concise. Offshore resources administration, it is said, is a multi-layered construct whose elements are not well integrated. Consequently, its workings are slow, repetitive and often working at cross-purposes (CAPP 2002). This balkanized character is due partly to the ambitious scope of offshore regulation, which covers sectors from environmental protection to health and safety to rights and royalties and business benefits. It is also due to the incremental growth of these functions, normally in separate policy silos, over thirty years and more. The result, it is suggested, is not rational, from either the industry or the public service perspective. It is expensive to comply with and unpredictable in results. Furthermore it presents huge challenges of coordination, across two (sometimes three) levels of government and more than a dozen major departments and agencies. This has been acknowledged, in the state realm, by the design of offshore energy accords, joint federal-provincial management authorities, and memoranda of agreement between lead departments and agencies. Yet the MoA process has been glacial, remains incomplete, and reveals at best a mixed record of achievement.
What, then, is the alternative? The offshore petroleum operators talk of regulatory simplification or rationalization, limiting the range of policy goals, shortening the length of regulatory cycles, shifting from prescription to performance-based regulation, or achieving regulatory efficiency as an industry competitive advantage. The overarching theme is the need for greater predictability and greater certainty in relations between state and stakeholders. Such a policy discourse causes alarm in other reaches of the offshore policy network, most visibly in the environmental NGOs but also in offshore business supply circles, the fishing sector and the coastal publics. Perhaps for this reason, the recent review initiatives have had varying degrees of political visibility. The three major initiatives are briefly described below.
On the Atlantic coast, the process kicked off in November 2002, when a high level business-government conference was convened in Halifax under the name of the Atlantic Canada Energy Roundtable or AERT. The catalyst here was the Canadian Association of Petroleum Producers, which had already flagged "regulatory efficiency and effectiveness" as a pressing public policy concern. However more immediate driving pressures came the disappointing results of early drilling on the deepwater continental slope (depths exceeding 200m), and the regulatory "time out" declared by leading operator EnCana, in suspending its Deep Panuke project application early in 2003.
The AERT brought together senior leaders and staff from four federal departments (Industry, DFO, NRCan and ACOA), energy ministers from NS, NB and NFLD, and CEOs from 25 leading petroleum companies. The industry premise was that "the Atlantic Canada regulatory framework is dated and inefficient; this increases costs and cycle times" (Protti 2002). Of particular concern was the new burden imposed by the Canadian Environmental Assessment or CEAA process, which was extended to the Atlantic offshore region after 2001. Government representatives were certainly willing to enter the dialogue. Since Ottawa embraced the discourse of 'smart regulation' in its fall 2002 throne speech, and the offshore provinces recognized that the exploration bubble of the late 1990s had deflated if not burst. Thus this inaugural roundtable meeting was propelled by a confluence of commercial and political concerns.
The structure of this exercise is one of its most notable features. First, it drew representation from the most senior levels of the respective organizations. As a result, their endorsement of a continuing work program, with agreement to review the results at regular intervals, ensured not only that follow-up would occur but that tangible progress was expected. Second, under guidance from discussion papers from CAPP and the Atlantic Canada Economic Council, among others, two leading themes were identified for future work by middle level and technical officials. One dealt with “regulatory issues” with the goal of broad spectrum regulatory renewal along streamlined, performance-based criteria. The second involved “industrial opportunities” and the need for a competitive contracting environment in which current international project procurement practices would form the basis for a new benefits regime and pave the way for an export-oriented Atlantic supplier base (AERT 2003). In 2005 the Roundtable reported mixed progress in delivering results. Firm commitments have been agreed for coordinated regulatory review of future offshore projects, within significantly shorter timeframes. But consensus was not reached on a series of industry cost concerns: for more discretionary rules on safety and environmental protection; on flow testing of new discoveries; on formal environmental assessment of exploratory wells; and on industrial benefits reporting protocols (AERT 2005).
In the north, the timeframe is similar but the process is somewhat different. It is generally recognized that major pipeline infrastructure will be required to sustain long term natural gas activities. At least two possible projects were evident by the year 2000. The Mackenzie Valley Project proposed to link three major gas fields in the Delta to the Alberta trunk system through a large diameter pipeline with an initial capacity around 1Bcf/day. The Alaska Gas producers Pipeline proposed, to connect north slope gas "over the top" of the arctic coast and down the Mackenzie Valley, with a capacity four times that of the Mackenzie line.
With such major projects in the offing, and Aboriginal groups in settled claim areas indicating their interest in joint ownership, the issue of northern pipeline project regulation was back on the agenda after almost 25 years. In November 2000, a committee of regulatory agency heads was convened, to explore ways of coordinating the regulatory processes that mandated separate public hearings (at least eight in number). Eighteen months later the Chairs Committee released a Cooperation Plan endorsed by three federal agencies, the GNWT and two of its boards, and four Aboriginal settlement boards. It sets out general terms for a joint environmental assessment process, a coordinated regulatory process, consolidated information requirements, shared technical support resources, and a public involvement plan. In addition, an estimated 3-4 year template of phases and outputs was forecast, covering the time from the filing of a preliminary information package or PIP to complete certification and permitting (NPEIARCC 2002). Notably, this plan was agreed prior to the filing of any project applications. Since then, the Mackenzie Valley group triggered a formal regulatory review by filing its preliminary plan in June 2003.
The west coast situation offers a different face again. As seen earlier, there are several signs that British Columbia may frame a regulatory and management system that meets or exceeds the streamlining features described above. The moratorium has offered an umbrella under which such preparations may occur.
Whatever the outcomes, this proliferation of review and redesign initiatives speaks to the degree of political flux in offshore regulatory regimes. The range of political agendas and policy priorities is broad. Obviously these initiatives are advanced in differing scales, and they should be interpreted accordingly. It is a massive undertaking to restructure a multi-agency, consolidated regulatory process. It is quite another to seek the tightening of permitting procedures within a single agency. In the Arctic and Pacific, there is an opportunity to build or restructure the regime in periods of comparative political calm, while capitalizing on the experience of the Atlantic coast. Equally, the new bargains are being negotiated in settings of varying political and commercial urgency. The reality of competition between Canada’s three offshore coastal regimes cannot be denied, given the shared involvement of the offshore corporate sector. Each regime exhibits certain sources of comparative political and commercial advantage. Only the east coast has reached the offshore production threshold. Only the north has made significant progress in accommodating Aboriginal title and treaty interests. Only the west coast is in a position to fashion new arrangements on a relatively blank canvas. On each coast, agencies have histories of interaction that can be alternately emancipating or paralysing.
It should be evident that in Canada, offshore petroleum politics reflects many of the classic staple resource features. It is clear that the possibility exists for a petroleum staple trade in all of Canada’s continental shelf regions. Capital seeks to appropriate a valued product and draws upon extensive technical and organizational capabilites to achieve this. The vitality of this staple trade depends upon market conditions external to the host economy, in this case the notoriously volatile markets for oil and gas. Nonetheless, in an energy world where fossil fuels will be relied upon to provide the predominant bridging supply for the next three to four decades, political and business interest is virtually assured, subject to favourable conditions. This, however, says nothing about the pace or scale of offshore production over this time. Despite some forty years of offshore exploration in Canada, the geological and commercial potentials are still far from clear. Petroleum ‘prospectivity’ refers to the estimated physical potential of sedimentary formations. It is a dynamic variable, highly sensitive to seismic and drill tests results and always assessed in a comparative (inter-field or inter-basin) context. A single result pointing toward a major find can reorient industry attention and positive follow-up testing can prompt a virtual stampede of interest.
As with most staples, the host states plays a co-determining role in development prospects. It is evident that state agencies can impinge on the industry through a variety of elements that make up an offshore petroleum strategy. This includes regulatory measures aimed at crown rights, royalties, health and safety, environment, and industrial and employment benefits. Mature staple states often adopt quasi-mercantilist outlooks, utilizing crown ownership to stipulate the terms of access while at the same time seeking to lever maximum commercial linkages and domestic surplus retention. The institutional and administrative arrangements for designing and delivering these measures are important co-determinants of offshore performance. A federal structure complicates the search for strategic consistency, through possible jurisdictional tensions that can be mediated through the courts, fiscal instruments or inter-governmental accommodation. An intriguing institutional innovation – the joint federal-provincial management board – has shifted the political focus from disputed ownership to harmonized regulation.
Whatever the state presence, its interests in managing field and basin development on a rounded basis are, at some point, likely to collide with the narrower extractive project focus of corporate sponsors. Finally, it should be remembered that the commercial and political underpinnings of staple industries are likely to change over time. The Canadian joint offshore boards are institutional products of the 1975-85 energy crisis era. Their capacities to adapt to subsequent regime changes, including energy price decontrol, new technological capabilities and shifting paradigms of project regulation, will co-determine the pace and scale of staple growth. There are now increasing pressures for policy convergence, and Canada's offshore future may yet involve a single cluster of offshore capital (indigenous or external) in a dominant investment position, facing a single (unitary or joint) regulator.
Despite the cluster “mature staple” properties mentioned above, there are a number of striking ways in which the offshore petroleum sector exhibits “post-staple” attributes. This is particularly evident in the growing influence of metropolitan or post-material political forces in the offshore sector. This may start from the fact that the industry in question does not occupy a spatial hinterland in the classic sense of a social formation resident in a material extraction zone. Indeed it is striking how socially uninhabited the offshore petroleum shelves really are. This creates a context of ambiguity on matters of stakeholding and representation. The petroleum staple “community” is restricted in size (by the capital intensity of the operations) and transitory in its presence (rotating in and out of offshore workplaces). Meanwhile the shore-based “community” that might claim a stake based on physical proximity (coastal residence) or livelihood (fisheries) is, as we have seen, largely disconnected from the petroleum staple.
Second, the political templates for offshore regulation have been forged over three decades of dramatically shifting public and governmental values. Where industry regulation aimed traditionally at stabilizing the conditions for production and profit, the new trajectories of social regulation deal with the externalities of material production, for workplace health, safety and environmental security. As we have seen, these fields are now central arenas of political conflict between offshore capital and state authorities. Corporate resistance to offshore social regulation mounted rapidly through the 1990s. It is now reflected in a series of concerted business-government initiatives, such as the Atlantic Energy Roundtable (with parallels in the North Sea and the Gulf of Mexico), aimed at reducing the social costs of offshore operations while redefining the locus of regulatory initiative. This is the world of harmonized and coordinated reviews, performance-based standards and the so-called smart regulation, where the private/public interface is being presently redefined.
Finally, it is clear that the offshore petroleum sector is far from insulated, politically, from the spill-over impacts of other fields. Of particular interest here are the potential challenges from new, holistic resource management paradigms and new social group claims. Ocean governance strategies, which seek to marshall a wider array of stakeholders under the banners of integrated management, ecosystem modelling and sustainable development, pose a potential threat to resource management regimes (like offshore petroleum) based on single sector extraction. On the other hand, the recent legal claims by Aboriginal Peoples to offshore resource ownership, which have won some degree of judicial recognition, stand to insert yet another policy template onto the offshore domain.
In so many respects, offshore petroleum is poised at a sensitive juncture. Perhaps the most significant political chapters remain to be written.
1. I wish to acknowledge financial support from the Social Sciences and Humanities Research Council of Canada, under the project "Policy Innovation and Management on the Eastern Continental Shelf: the Politics of Offshore Petroleum Development in Nova Scotia and Louisiana.”
Figure 1 - Offshore Petroleum Management Issue Areas and Instruments
Offshore Policy Issue Areas
1. Determining Jurisdiction
Continental shelf jurisdiction; International convention; Constitutional powers; boundary and federalism litigation; joint management board.
2. Allocating rights to explore and extract
Auction or concession: exploration, commercial discovery, production licenses; Moratorium; state "back-in" provisions.
3. Project Assessment/ Approval
Project proposal; Panel review; Public hearing; Project licensing; Terms and conditions; discretionary deviations.
4. Royalty and Taxation
Cash royalty; Royalty in kind; Royalty relief; depletion allowance; State oil company.
5. Health and Safety
Statutory prescriptions; Codes of conduct; Operator management systems; Third-party standards and audits.
6. Environmental Security
Project environmental assessment; Statutory prescriptions on equipment or processes; Environmental effects monitoring; Operator management systems; Third-party standards and audits.
7. Industrial and Employment Benefits
Procurement plan review (undertakings, bid lists, award pre-screening, designated items, domestic content levels); Employment plan review (training, hiring levels); Audits; Performance links to future rights allocation.
8. State Regulatory Reform
Streamlining of multi-agent processes; Joint project assessments; Statutory incorporation of private industry standards; Use of performance-based standards; reduced regulatory cycle times;
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