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National Rail Authority Prospect in Oblivion (part I)

As Public Concerns Mounts Over Expiration of Executive Order Soon

IPNEWS: It is nearly a year since October 17, 2022, after President George Weah issued Executive Order #112 establishing the National Railway Authority (NRA) with the responsibility to, amongst other things, manage railway and associated infrastructures owned by the Government of Liberia.

The Order came from the backdrop of the Government of Liberia owning certain key assets of national importance comprising railways and associated infrastructures, such as the Yekepa Railway that runs from the station at Yekepa in Nimba County through parts of Bong County to the terminus and associated port infrastructure at or in the vicinity of the Port of Buchanan in Grand Bassa County or Buchanan Port.

The Executive Mansion stated that President George Manneh Weah was committed to the development and enhancement of the Liberian Infrastructure Assets in the national interest to permit increased use of these strategic assets by producers in Liberia for the export of minerals and other goods for the benefit of the people of Liberia and the sustainable development of the Liberian economy, including especially Nimba, Bong, and Grand Bassa Counties.

The Liberian leader mentioned that those Liberian Infrastructure Assets have been underutilized in the past to the detriment of the people of Nimba, Bong and Grand Bassa Counties, and the nation.

Since this Executive Order announcement. little has been heard or seen on the establishment of the National Rial Authority, including the lack of a bill for enactment given the lifespan of an Executive Order in accordance with Liberia’s governance practice which allows the office of the President to exercise certain powers in the operations of the governance that includes the granting of Executive Orders under the lifespan of one year.

The Legislature of Liberia creates new laws and modifies existing ones. It is also charged with reviewing laws that are introduced by the Executive and with approving the national budget that the Executive proposes.

The lingering prospect for the has sparked concerns as to the benefits Liberia stand to with the establishment coming into being the National Rail Authority is becoming more worrisome.

Liberia’s Commitment to Treaties

During the pronouncement on the sitting up of the National Rail Authority, President George Weah recalled that the Government of Liberia has also entered a treaty with the Government of Guinea (the “Implementation Agreement”) dated 11 October 2019 and given full legal effect by the Republic of Guinea on 18 February 2020 and by the Republic of Liberia on 6 May 2021 for the export of certain Guinean Products via Liberia that have been identified and approved by the two governments (‘Approved Infrastructure Projects’).”

The President’s Executive Order also acknowledged that the “Government has granted the non-exclusive use of the Liberian Infrastructure Assets to ArcelorMittal Holdings A.G. and ArcelorMittal Liberia Holdings Limited (together ‘ArcelorMittal Liberia’) under the terms of a mineral development agreement as amended on 28 December 2006 and 23 January 2013 (the ‘MDA’); and the Government has also committed, pursuant to the terms of a framework agreement with Ivanhoe Liberia Limited (‘Ivanhoe’) and Société des Mines de Fer de Guinee (‘SMFG’) dated 20 December 2019 (as amended on 12 April 2021 and 30 March 2022) (the ‘Framework Agreement’) and the Implementation Agreement (1) to provide access and use of the Liberian Infrastructure Assets to Ivanhoe and SMFG pursuant to their Approved Infrastructure Project; and (2) to enter into a concession and access agreement as regards certain specific terms for the long term use of and access to the Liberian Infrastructure Assets and associated infrastructure and facilities.”

The Liberian leader further indicated in the Executive Order is to sustain commitments of the government of Liberia to the core principles of open, non-discriminatory access on a multi-user basis to the Liberian Infrastructure Assets for ArcelorMittal Liberia, Ivanhoe and SMFG (or their affiliates) together with any other eligible users, including local companies and mining operators approved as such by the Government (“Eligible Users”), and in accordance with best international industry practice and best technical, safety, social and environmental standards (“Core Principles”).

According to the Liberian Leader, “ The Government will honour its obligations under existing agreements including the MDA, the Implementation Agreement and the Framework Agreement with respect to the use of and access to the Liberian Infrastructure Assets while also making their use available to all Eligible Users in a manner consistent with the Core Principles.” President Goerge Weah mentioned.

However, President Weah indicated that the established National Rail Authority will provide an organizational structure to facilitate and coordinate access to the Liberian Infrastructure Assets consistent with the Core Principles and to resolve any disputes or disagreements that may arise.

The Liberian President’s Order contends that the establishment of the NRA is consistent with executive powers granted to the President by the Constitution to direct all relevant Ministries and agencies of Government in the conduct of their duties and responsibilities.

Furthermore, the president’s Order notes that the NRA shall establish rules and procedures and enforce standards for infrastructure system management services of private and public common carriers of whatever nature and, in general, to develop, regulate, control and monitor vehicles, boats, ships, fishing vessels and railways and for the inspection and safety of the seas and railways.

It shall establish and implement the overall transportation policy of the Republic and develop plans for the movement of goods and people within and without the Republic, including goods transiting through Liberia from neighbouring countries, regulate the use of ports and harbours, provide for the conduct of any other matters ancillary or incidental to the foregoing.

Furthermore, the Executive Order states that the National Railway Authority shall, in carrying out its duties, honour all existing legal commitments of the Government to all persons including those with rights to access and use the Liberian Infrastructure Assets.

Additionally, the NRA shall establish rules and procedures and enforce standards for infrastructure system management services of private and public common carriers of whatever nature and, in general, to develop, regulate, control and monitor vehicles, boats, ships, fishing vessels and railways and for the inspection and safety of the seas and railways, including the establishment and implement the overall transportation policy of the Republic, and develop plans for the movement of goods and people within and without the Republic, including goods transiting through Liberia from neighbouring countries, regulate the use of ports and harbours, provide for the conduct of any other matters ancillary or incidental to the foregoing.

“The National Railway Authority shall, in carrying out its duties, honour all existing legal commitments of the Government to all persons including those with rights to access and use the Liberian Infrastructure Assets.”

“Pursuant to the authority of the President under the Constitution and laws of the Republic of Liberia, I hereby direct that there shall be established a National Railway Authority under the aegis of the Ministry of Transport pursuant to its lawful authority and responsibility. ”

“As the owner of the Liberian Infrastructure Assets, the Authority shall be responsible for the upgrade, maintenance, open track access, and licensing of Eligible Users on the Liberian Infrastructure Assets, and may review, approve, and incorporate the existing maintenance and upgrade obligations and expansion programs of the Eligible Users.”

“In order to provide an organizational structure to manage the Liberian Infrastructure Assets, the National Railway Authority shall appoint an independent operator to operate, manage, plan and implement the development of the Liberian Infrastructure Assets system.”

“The independent operator shall also have the authority to coordinate access to and usage of the Liberian Infrastructure Assets by Eligible Users so as to maximize their fair, safe and efficient use pursuant to the lawful rights of each Eligible User, and consistent with the Core Principles. It is understood, however, that each Eligible User shall operate its own train and port activities for itself, under the supervision and coordination of the independent operator,” President George Weah Executive Order asserts.

Now, in consonance with President Weah’s commitment to treaties and other agreement signed by the government of Liberia, major players are now visibly commencing the push for control of the rails that connects the Republic of Guinea to the Port of Buchannan in Liberia, which continued to heighten public scepticism as the attainment of the National Rails Authority, especially with the new non-discriminatory Framework Agreement for access to Liberia’s rails and ports.

Recently, Guy de Selliers, Chairman of Ivanhoe Liberia commented“This Framework Agreement for access to critical Liberian port and rail infrastructure is an important step forward in making the Guinean Nimba Iron Ore Project a reality. It is clear that our project will deliver significant benefits in the form of investment, employment and recurring income for both Guinea and Liberia.

Through this Framework Agreement and the upcoming definitive Concession and Access Agreement, HPX is committed to ensuring that Liberia and the Liberian people reap their fair share of the benefits of the Guinean Nimba Iron Ore Project.

In addition, we want to develop our own mining activities in Liberia and have committed to start immediately identifying potential projects and exploration targets.

Now it’s time for all of us who care about mining and infrastructure in the region to become true partners and work together. Together with the Government, I really look forward to working co-operatively alongside ArcelorMittal to accelerate the development of both our Guinean Nimba Iron Ore Project and the planned expansion of their Liberian operations for the benefit of the Guinean and Liberian people, including as users of a passenger and freight rail service.”

Contrary to Guy de Selliers, Chairman of Ivanhoe Liberia, President George Weah’s Executive Order mandates the National Railway Authority to ensure that ‘Eligible User access arrangements for the Liberian Infrastructure Assets conform to the Core Principles, and that in the case of any negotiations or arrangements by the Government with an Eligible User regarding the future terms of their use of the Liberian Infrastructure Assets, the terms of such arrangements shall be consistent with the Core Principles.

It Order further states: “In the case of any dispute or failure to agree between or among Eligible Users and/or the Government and/or the independent operator (with regard to such individual operations and expansions as each may carry out), the National Railway Authority shall (promptly, and in any case within 30 days of a request from any Eligible User), in consultation with all such Eligible Users, appoint an eminent international neutral third party to serve with authority to resolve any such dispute or failure to agree in accordance with the Core Principles, and in that case the decision shall be made as promptly as reasonably possible, with the aim of opening within 60 days. The decision of such eminent international neutral third party shall be binding on all parties to such conflict or dispute, although subject to review as permitted under the laws of Liberia.”

At the same time, President Weah noted that nothing in the Executive Order shall interfere with or diminish the rights of any Eligible User to access the Liberian Infrastructure Assets, but it shall instead interpret such as to enhance and promote the overall benefit of the Liberian Infrastructure Assets to the Republic of Liberia and its citizens.

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