2007 Mining Sector Wrap Up: One Step Forward,

UNCLAS SECTION 01 OF 07 ULAANBAATAR 000068 SIPDIS SENSITIVE SIPDIS STATE FOR EAP/CM, EB/ESC, AND EB/IFD/OIA STATE PASS USTR, USGS, DOC/ITA, EXIM, OPIC, AND EPA STATE PASS AID/ANE D. WINSTON COMMERCE FOR ITA FOR ZHEN GONG CROSS MILLENNIUM CHALLENGE CORP WASHDC FOR F.REID TREASURY PASS USEDS TO IMF, WORLD BANK MANILA AND LONDON FOR USEDS TO ADB, EBRD E.O. 12958: N/A TAGS: ENRG EMIN PREL SENV ELTN ETRD CA MG SUBJECT: 2007 Mining Sector Wrap Up: One Step Forward, Two Steps Back REF: A. 07 Ulaanbaatar 216 ¶B. 07 Ulaanbaatar 478 ¶C. 07 Ulaanbaatar 483 ¶D. 07 Ulaanbaatar 080 SENSITIVE BUT UNCLASSIFIED - NOT FOR INTERNET DISTRIBUTION ¶1. (SBU) SUMMARY: MongoliaQs mining sector took a wild ride in 2007 as alarming setbacks overshadowed promising advances made earlier in the year. Major achievements included a deal on a stability agreement with Ivanhoe/Rio Tinto to develop the promising Oyu Tolgoi copper mine, and the appointment of a respected technocrat to run the state-owned company that will manage the governmentQs equity in strategic mines. Setbacks included regulatory mischief surrounding mining license issuances and revocations; ParliamentQs failure to approve the Ivanhoe/Rio Tinto deal; sluggish progress toward a deal on the world-class Tavan Tolgoi coal mine; and new amendments to the Minerals law that would allow the GOM to take a minimum of 51% strategic stake in important mines. The installation of a new Government in November promised movement on many of these issues, but there has so far been little to show for it. With Parliamentary elections nearing, many experts believe the chance to settle these matters will be delayed indefinitely. However, Mongolia cannot afford to wait much longer in responding to serious offers to develop its mining sector. And it must learn that constantly changing laws and regulations will only scare off investors. END SUMMARY. Despite Early Optimism, Movement On Mining Slows -------------- --- ¶2. (SBU) Throughout early 2007, relations between the GOM and mining investors were moving in a positive direction following dust-ups related to passage of amendments to the Minerals Law and the widely scorned Windfall Profits Tax, both adopted in 2006. But the optimism quickly dissipated as deals became increasingly unlikely on the Oyu Tolgoi and Tavan Tolgoi deposits, and regulatory shenanigans sparked investor fear of "creeping expropriation" by the GOM. 
 ¶3. (SBU) The GOMQs failure to reach agreements on two of the countryQs preeminent mining deposits -- the copper-rich Oyu Tolgoi and the world-class coal deposit Tavan Tolgoi, both located in the south Gobi Desert not far from the Chinese boarder -- have proven bitterly disappointing for international investors. ULAANBAATA 00000068 002 OF 007 These two projects alone could transform Mongolian infrastructural development for years to come in the areas of power, water, roads, rail, and aviation. Oyu Tolgoi Deal Stalls -------------- ¶4. (SBU) Mongolia and Rio Tinto/Ivanhoe broke through a four-year long negotiating logjam to reach a deal that would allow development of the Oyu Tolgoi copper mine that. Once operational, it could raise MongoliaQs GDP by 50% from the current US$ 2 billion to perhaps US$ 3 billion (Reftel A). The deal called for the Government to get 34% of the mine equity, to be paid for out of the GOMQs share of the mine profits and tax exemptions. (Note: Post has been engaged in advocacy for Rio Tinto on the deal. End Note.) ¶5. (SBU) Unfortunately, Parliament has so far balked at approving an agreement it believes is overloaded with tax exemptions that deny Mongolia badly needed revenue. The GOM did not properly present the agreement to the public or Parliament, which fed misconceptions and fears about the deal. Now, populist members of the opposition Democratic Party are calling for Rio Tinto to give the GOM an additional 17% of the Oyu Tolgoi mine for free. If Rio Tinto refuses, the DP threatens to nationalize the property. (Note: Some Democrats believe their party is in a strong position to win the June Parliamentary elections. End Note.) ¶6. (SBU) Rio Tinto has resisted, arguing that this expropriation of their rights would render the mine unprofitable. With little likelihood of parliamentary approval before the elections, Rio Tinto has decided to wait until conditions settle, and has begun to mothball the project. (It is reducing the high level of current monthly expenditure to a sustainable level, and by the end of March, will have slashed the Mongolian and expat workforce by 900 employees.) ¶7. (SBU) Mining industry insiders believe that failure to move on the Oyu Tolgoi deal will signal the end of current efforts to bring world-class mining to Mongolia for five to 10 years. This would subject Mongolia to three stresses. First, it would deny Mongolia revenue needed for development and to sustain social spending obligations over the short and medium -term. Second, Mongolia is lacking in capital and expertise. If it fails to attract qualified western mining firms, it may have to turn to Russian and Chinese state-owned firms with terrible environmental ULAANBAATA 00000068 003 OF 007 records and a proven lack of respect for third-country laws and regulations regarding mining. Third, without western firms (and their Governments) to counter- balance Chinese and Russian influences, Mongolia would essentially have to cede its economic independence to whichever neighbor gained control of the asset and the rights to operate it. ¶8. (SBU) The GOM intends to have the current deal reviewed by a reputable Western firm expert in evaluating such deals, and for the evaluation to be presented to the public and Parliament. The recommendation would presumably either approve of the deal in its current form or call for its renegotiation. (Delays and political realities may require complete re-negotiation to account for changing costs and commodity markets. Unfortunately, neither the GOM nor Parliament seems to appreciate this fact of commercial life.) Tavan Tolgoi Bogged Down in Negotiations -------------- ¶9. (SBU) After taking office in November, Prime Minister S. Bayar said that on national security grounds, his Government would take full control of mining licenses covering the coking and thermal coal deposit at Tavan Tolgoi. The GOM made clear that private rights holders would be compensated. The GOMQs intentions seem sincere, but negotiations quickly became bogged down over price and are currently suspended until after the Lunar New Year. It is now thought that it might take a while to sort out the local ownership, the government share, and the share of foreign companies -- many of which are beating on the government's door to do a deal. ¶10. (U) Post has been actively engaged in advocacy efforts for US-based Peabody Energy, the world's largest private coal mining company, in its bid to become part of a consortium to develop Tavan Tolgoi. (The latterQs reserves are conservatively estimated at 6 billion metric tons.) The New Government Faces Old Obstacles -------------- ¶11. (U) The formation of a new Government in late 2007 has generally been seen as positive by the mining industry and the public, as the Bayar Government seems intent on moving mining issues forward, and has said as much publicly and privately to various stakeholders. Specific steps taken include recalling both the Oyu ULAANBAATA 00000068 004 OF 007 Tolgoi and Tavan Tolgoi projects from parliamentary consideration so that the GOM could reform and re- present the agreements, after having subjected them to professional review and renegotiation. ¶12. (U) But the current GOM has less than six months before the next parliamentary elections to accomplish something substantive on mining. In the meantime, the opposition has no interest in allowing the current Government to claim success on any score and will resist. This would raise questions about the legitimacy of any major project, which would seem to require bilateral support from both leading parties (the DP and the ruling Mongolian PeopleQs Revolutionary Party, or MPRP). U.S. Interests -------------- ¶13. (U) The Department of Commerce, through its Advocacy Center, has granted advocacy support to both Peabody and Rio Tinto, recognizing that their involvement at Tavan Tolgoi and Oyu Tolgoi, respectively, offers substantial, long-term export potential for U.S. manufacturers, as well as promoting U.S. free-market and democratic goals for Mongolia. In addition, there are other opportunities for exports of goods and services to the mining sector. The Mongolians are extremely interested in sourcing clean- coal technologies from U.S. suppliers. Caterpillar, for instance, has done well in supplying this sector. General Electric is ideally placed to sell the locomotives that will pull the coal and ore trains, and U.S. expertise at setting up efficient coal-rail systems will be in demand. Regulatory Mischief -------------- ¶14. (SBU) In September, Mongolia's reputation as safe place to invest suffered serious damage when officials from the GOMQs MRPAM (Mineral Resources and Petroleum Authority) attempted to revoke the exploration rights of 18 mining companies, some of which had American equity invested. This completely ignored promises made to these companies under both the old and the newly amended Minerals Laws of Mongolia (reftel B, C). Although another official from the same agency reversed the revocation a few weeks later, the lack of a formal process for reviewing and executing policy among the responsible agencies led to decisions that tarnished MongoliaQs reputation among investors, many of whom labeled the GOMQs moves as "creeping ULAANBAATA 00000068 005 OF 007 expropriation" and a complete violation of the GOM's explicit commitment to follow best practices and the rule of law. ¶15. (SBU) It didnQt help that the move came six months after foreign and domestic mining complained to Post that GOM processing of exploration and mining licenses had all but ceased (reftel D). They accused the former Ministry of Industry and Trade (MIT) Minister Jargalsaikhan (later sacked) of illegally using his position to embargo license processing. Fearing the loss of their licenses, the companies threatened to drag Mongolia into local and international courts. The episode helped expose serious flaws in the revised Minerals Law that allowed for a wide array of regulatory mischief. Appointment of Zorigt -------------- ¶16. (U) In March, the GOM established the state-owned Erdenes-MGL (UB 217) to receive and manage its equity shares of "strategic" mines. The appointment of D. Zorigt, a young, well-known and respected technocrat previously with the Ministry of Industry and Trade, was welcomed. Zorigt has been working with international consultants to create a company that is transparent, free from government interference and based on western best practices. New Amendments to the Minerals Law -------------- ¶17. (SBU) Recent calls by certain MPs for all "strategic" deposits to require a minimum of 51% participation/equity for the GOM highlight the haphazard, constant threat to change recently amended mining law of Mongolia, regardless of the commercial issues or capacity of the GOM to pay for what it plans to take from firms (let alone invest in building the mine). ¶18. (SBU) Needless to say, MPs do not consider whether the GOM can execute its function as regulator of a mine in which it might have a financial interest. Experience at mines currently operated by the state indicates that the GOM lacks both the capacity and will to balance health, worker safety, environmental and other concerns, while meeting the need to generate revenue. Mining firms report that although they can craft deals that may be commercially viable under a variety of circumstances, the constant change in laws or regulations, and the constant threat of fundamental ULAANBAATA 00000068 006 OF 007 alterations in existing laws, fuels the perception that Mongolia may be too unstable to invest in. Big players like Peabody, RT, BHPB, etc., have no plans to depart, but tell Post that they will wait till matters settle before concluding deals. ¶19. (U) The seventh annual Fraser Institute Survey of Mining Companies recently listed Mongolia as 62nd out of 65 countries in attractiveness for mineral exploration, down from 33rd the previous year. The drop was attributed to regulatory problems and a lack of openness. It places Mongolia just above Zimbabwe and Venezuela. Comments and Conclusions -------------- ¶20. (SBU) Mining of MongoliaQs mineral, metal resources and hydrocarbon resources is crucial to MongoliaQs development. Because mining activities touch on so many facets of Mongolian life -- economic, human-resource development, environmental, health and safety, infrastructure, foreign relations, etc. -- it remains a challenge for all parties affected to craft and implement a workable, reasonable legal and regulatory framework for mining. Mongolia Must Decide -------------- ¶21. (SBU) Mongolia needs to decide how it wants mining to proceed. The GOM has been presented with serious offers by reputable mining firms on projects, not least of all Oyu Tolgoi, that will profoundly affect Mongolian development. It is incumbent on Mongolia to respond to these offers in a timely and serious manner. A measure of the maturity of the Mongolian political system will be its ability to render a decision -- positive or negative -- on mining developments. Much of the support that Mongolia has received from donors and investors is predicated on a maturing of its market-oriented democracy. Aid projects, among them MCC, are seen as stepping stones along a path that will lead to the private sector leading economic development, not the Government or some external donor. And Mongolia has come to the point where the private sector seems ready to assume this leading role in the mining sector, but Mongolia hesitates; donor faith wanes; commodity prices fall; and interest turns elsewhere, leaving Mongolia as a might-have-been. Constantly Shifting Regs Scare Off Investors -------------- ULAANBAATA 00000068 007 OF 007 ¶22. (SBU) Our paramount concern, and the root of many problems, is the lack of a stable, fair, transparent legal and regulatory system in Mongolia - one country, one legal system, and one body of unified law and regulation applied consistently and fairly to all players. Constantly shifting laws and regulations, or the continual threat to change mining-related laws and regulations, is scaring off foreign and domestic investors. The adoption of democracy and a market economy has brought about tremendous legal change and challenges in Mongolia. Mongolian legislators will have to develop a system in which investors, citizens and others can gain a clear picture of what is expected of them. GOM Should Avail Itself to World Bank Assistance -------------- --- ¶23. (SBU) Regarding the overall regulatory framework, we recommend that the GOM avail itself of assistance offered by the World Bank. In our view, the World Bank has correctly diagnosed the challenges facing MongoliaQs mining sector in the position paper prepared on behalf of the Donors for the DonorQs Technical Meeting held in Mongolia on January 2008. Regarding advice on specific mining projects, we agree with the GOM that it should seek out expert advice from a world-class firm qualified to evaluate and advise on current and future mining projects, in a timely fashion. ¶24. (SBU) The USG has not asked Mongolia, nor will it seek special treatment for U.S. companies based on political considerations. Given a level playing field, based on best practices and the rule of law, and our firms and investors can compete with those from other nations, offering terms that will satisfy both investorsQ commercial concerns and Mongolian domestic expectations for mining. ZAPPIA