ACCESS AGREEMENT
BETWEEN
YANKUNYTJATJARA COUNCIL (ABORIGINAL CORPORATION)
AND
ANTAKIRINJA LAND MANAGEMENT (ABORIGINAL CORPORATION)
AND
XXXXX XXXXX
XXXX XXXXX
XXXXX XXXX
XXXXX XXXXXX
XXXXXX XXXXXX
XXXXXX XXXXXXXX
AND
XXXXXXX XXXXXXX XXXXXX SNR.
XXXXXX XXXXXXX
XXX XXXXXXX
XXXXX XXXXX
AND
XXXXXX EXPLORATION PTY. LTD.
prepared by:
PITJANTJATJARA COUNCIL INC. (LEGAL DEPARTMENT)
0 Xxxxxxxxx Xxxxxx,
X.X. Xxx 0000
XXXXX SPRINGS, N.T. 0870
Phone: (00) 0000 0000
Fax: (00) 00 00 0000
CONTENTS
Page 2 Recital
CLAUSE
1. Definitions
2. Interpretation and Other Matters
3. Consent
4. Undertaking
5. Initial Survey of License Area by Explorers
6. Consideration Given by the Explorers
7. Notification of Operations
8. Land Entry and Occupation
9. Identification
10. Petroleum Operations
11. Scouting Teams
12. Screening and Clearance
13. Effect of Operations on the Environment
14. Advisory Committee
15. Removal of Employees
16. Instruction in Aboriginal Culture
17. Explorer Covenants
18. The NTPs Covenants
19. Rights of Traditional Owners
20. Rights of Explorer
21. Reversion of Infrastructure
22. Indemnity
23. Field Development and Production
24. Petroleum Production License
25. Force Majeure
26. Assignment
27. Operations
28. Confidential Information
29. Termination
30. Termination of Activities
31. Consequences of Termination
32. Costs and Payments
33. Disputes
34. Term
35. Variation
36. Further Assurance
37. Notices
Schedule 1
Description of the License Area
Schedule 2
Schedule 3
Payments to the NTPs pursuant to Clause 6.1.3 of the Agreement
in respect of Petroleum Operations under the PEL
Schedule 4
Payments to the NTPs pursuant to Clause 6.1.4 of the Agreement
in respect of Petroleum Operations under the PPL
AGREEMENT
THIS AGREEMENT is made the 1st day of May 1998
BETWEEN:
YANKUNYTJATJARA COUNCIL (ABORIGINAL CORPORATION): an Association incorporated
pursuant to the provisions of the Aboriginal Councils & Associations Xxx 0000
(Clth) and having its principal office at 0 Xxxxxxxxx Xxxxxx, Xxxxx Springs in
the Northern Territory of Australia, of the first part.
-AND-
ANTAKIRINJA LAND MANAGEMENT (ABORIGINAL CORPORATION) an association incorporated
pursuant to the provisions of the Aboriginal Councils & Associations Xxx 0000
(Clth) and having its principal office at Umoona Community Council, Family Care
Workers Office, Coober Pedy in the State of South Australia, of the second part.
-AND-
XXXXX XXXXX, XXXX XXXXX, XXXXX XXXX, XXXXX XXXXXX, XXXXXX XXXXXX AND XXXXXX
XXXXXXXX the registered Native Title Claimants on behalf of all the Claimants
referred in the Application for Native Title Determination known as SC97/9
lodged 21st November 1997 by Aboriginal Legal Rights Movement Inc. of 321-325
King Xxxxxxx Street Adelaide in the State of South Australia of the third part.
-AND-
XXXXXXX XXXXXXX XXXXXX SNR. XXXXXX XXXXXXX, XXX XXXXXXX, and XXXXX XXXXX the
registered Native Title Claimants on behalf of all the Claimants referred to in
the Application for Native Title Determination known as SC95/7 lodged 14th
November 1995 by Aboriginal Legal Rights Movement Inc. of 000-000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxx in the State of South Australia, of the fourth part.
[the parties of the first to the fourth parts hereinafter
collectively referred to as the Native Title Parties [ X.X.Xx j
-AND-
- 1 -
XXXXXX EXPLORATION PTY LTD (ACN 073 039 059) a body incorporated pursuant to the
lncorporation's Law having its principal office at XXX Xxxxx, Xxxxx 0, 000
Xxxxxxxxx Xxxx, Xxxxxxxx in the State of South Australia ("hereinafter referred
to as the Explorer") of the fifth part.
WHEREAS:-
A. Yankunytjatjara Council (Aboriginal Corporation) is an Association the
Objects and Rules of which include the protection of the culture and
heritage of the Traditional Lands of its members.
B. Antakirinja Land Management (Aboriginal Corporation) is an Association the
Objects and Rules of which include the pursuit of a Native Title
Determination and the protection of the culture and heritage of the
Traditional Lands of its members.
C. On the 23rd day of May 1996 the Explorer was granted by the South
Australian Minister for Mines & Energy under the provisions of the
Xxxxxxxxx Xxx 0000 (SA), Petroleum Exploration License No. 63
("hereinafter referred to as the 'tenement") which is located over
portions of Pastoral Leases known as Lambina, Xxxxxxxx Xxxx, Wintinna
West, and Mt Xxxxxxxxxx as well as a portion of the Tallaringa
Conservation Park.
D. The Traditional Lands are areas where the Native Title Parties currently
exercise native title rights includes the area boarded by the tenement.
E. The NTPs believe that the grant of the tenement gave the Explorer no right
to carry out Petroleum Operations on it as Sub-division B of Division 3 of
Part 2 of the Native Xxxxx Xxx 0000 (CLTH) has yet to be complied with.
F. Without waiving any other rights the NTPs may possess against the State of
South Australia for failure to comply with the provisions of the Native
Title Act 1993 (CLTH) the NTPs enter into this Agreement in lieu of any
other agreement they may have entered into pursuant to the procedures
under the Native Xxxxx Xxx 0000 (CLTH).
G. The parties having negotiated in good faith intend that this
Agreement shall:-
(a) provide the terms and conditions under which the Explorer can access
the tenement for the purpose of carrying out Petroleum Operations;
(b) provide an undertaking by the NTPs not to challenge the validity of
the grant of the tenement by the Minister for Mines & Energy Resources
(SA) or the validity of the Explorer's right to carry out Petroleum
Operations unless there is a breach of the provisions of this
Agreement; and
(c) provide the methodology for the protection of sites of spiritual and
cultural significance to the NTPs and the protection of sites and
objects under the Xxxxxxxx Xxx 0000 (SA).
H THE EXPLORER'S OBLIGATIONS UNDER THIS AGREEMENT ARE NOT DEPENDENT UPON
NTPS ESTABLISHING NATIVE TITLE OVER THE TENEMENT OR HAVING A DETERMINATION
OF NATIVE TITLE MADE BY THE NATIONAL NATIVE TITLE TRIBUNAL, THE FEDERAL
COURT OR ANY OTHER COURT OF COMPETENT JURISDICTION.
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I. The land covered by the tenement is included in Applications for a Native
Title Determination (SC 95/07) lodged with the National Native Title
Tribunal on the 14th November 1995 and accepted on the 29th August 1996,
and ( SC 97/9) lodged on the 21st November 1997.
J. NTPs having used all reasonable endeavors to identify all persons who hold
or who may hold native title rights in relation to the License Area and
having consulted with those persons, act with their authority for the
purpose of entering into this Agreement.
K SHOULD THE COMMONWEALTH NATIVE TITLE ACT OR COMPLEMENTARY SOUTH AUSTRALIAN
LEGISLATION BE AMENDED TO PROVIDE FOR THE REGISTRATION OF AGREEMENTS
BETWEEN THE CLAIMANTS OR HOLDERS OF NATIVE TITLE AND THIRD PARTIES WITH
ANY PROPRIETORIAL RIGHTS ON NATIVE TITLE CLAIMED LAND, THIS AGREEMENT
SHALL BE REGISTERED AS IS, OR, IF IT REQUIRES AMENDMENT TO ENABLE
REGISTRATION. THE PARTIES AGREE TO AMEND THE AGREEMENT ACCORDINGLY.
NOW THIS AGREEMENT WITNESSES as follows:
1. DEFINITIONS
In this Agreement unless the context, otherwise requires, the
following words and expressions shall have the following meanings:
the Advisory Committee means the Advisory Committee constituted
under Clause 14 hereof;
Areas of Significance means any site on the tenement that is
identified by the Scouting Team as being of
cultural, social or spiritual significance
to the Traditional Owners of those areas
and includes any "Aboriginal site" as
defined by the Aboriginal Xxxxxxxx Xxx 0000
(South Australia) and any "significant
aboriginal areas" as defined in the
Aboriginal and Xxxxxx Xxxxxx Islander
Protection Act 1984 (Cwth);
the Explorer means Xxxxxx Exploration Pty Ltd [ACN 073
039 0591 and includes any assignee pursuant
to Clause 26.
License means, as the context requires, the
petroleum exploration license known as
Petroleum Exploration License No.63 granted
by the Minister for Mines and Energy on the
23 May 1996 covering the area described in
Schedule 1 hereto and any petroleum
production license or pipeline license
issuing therefrom and any renewals and
extensions of the same;
License Area means the area more particularly described in
Schedule 1 hereto, and subsequent to the grant of
the petroleum production license, the area for the
time being the subject of the License as defined
herein;
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License Year means such twelve calendar month period
commencing on the date of grant of the PEL and
thereafter on each subsequent anniversary of the
date of such grant.
Native Title Parties (NTPS) means the parties of the first
to fourth parts described hereto and shall include
members of the Yankunytjatjara Council (Aboriginal
Corporation), and Antakirinja Land management
(Aboriginal Corporation);
"native title" has the same meaning as that term is
defined in the Native Xxxxx Xxx 0000 [Clth]
the Minister means the Minister of Mines and Energy for
the State of South Australia, or his
successor;
the Operator means Xxxxxx Exploration Pty Ltd or any
additional or substituted operator approved
by the NTPs under Clause 30 hereof;
Operational Area means any part of the License Area upon which
from time to time under the terms of this Agreement
the Explorer propose to carry out or carry out
Petroleum Operations;
PEL means Petroleum Exploration License No. 63
described in Schedule 1 hereto and any
renewals and extensions of the same;
PPL means any one or more petroleum production license
or pipeline license for which the Explorer may
apply and be granted covering an area within the
area described in Schedule 1 hereto and any
renewals and extensions of the same;
Petroleum has the same meaning assigned to that
expression in the Petroleum Act. Where the
term "Petroleum" is used herein it shall
include each and all constituents thereof;
the Petroleum Act means the Xxxxxxxxx Xxx 0000 xx Xxxxx
Xxxxxxxxx as amended or any enactment substituted
therefore together with any regulations and
subordinate legislation made thereunder;
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Petroleum Operations means operations carried out pursuant to,
or for the purpose of giving effect to, the
License and, without limiting the foregoing
shall include, drilling, geological,
geophysical and other exploration
activities, and the-development,
production, gathering, separating, pressure
maintenance, dehydrating, heating,
treating, processing, handling,
transportation, fractionation, storage and
marketing of Petroleum produced or to be
produced from the License Area, including
but not limited to, the design, capacity,
installation, operation, maintenance,
repair and replacement of all facilities
required;
Scouting Team means the persons referred to in Clause 11
hereof;
Seismic Lines; access road
corridor means a corridor of 100 meters on either side
of a proposed or existing seismic line or
access road which has been screened and
cleared in accordance with Clause 12 hereof;
to transfer means to sell, assign, transfer, convey or
otherwise dispose of; and "transfer",
"transferred" and "transferring" have
corresponding meanings
Traditional Lands means that area of land situated within
the State of South Australia and included
within Applications for a Native Title
determination
Traditional Owner in relation to the Operational Area means
an Aboriginal person who has, in accordance with
Aboriginal tradition, social, economic and
spiritual affiliations with and responsibilities
for, the Operational Area or any part of it;
Work Site means any camp site or other living area,
air strip, water bore site or drill site in
the License Area which the Explorer
pursuant to the terms of this Agreement
propose to locate or locate in an
Operational Area and includes any other
area in the License Area (other than the
proposed or actual location of a seismic
line or access road) in which the Explorer
pursuant thereto proposes to carry out or
carry out Petroleum Operations.
2. INTERPRETATION AND OTHER MATTERS
2.1 The Recitals and the Schedules to this Agreement shall be deemed to
form part of this Agreement and shall be used in its interpretation
and construction.
2.2 Unless the contrary intention appears in this Agreement-
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2.2.1 monetary references are references to Australian currency;
2.2.2 a reference to an act or regulation includes any amendments to
that act or regulation for the time being in force and also to
any act or regulation passed in substitution therefore;
2.2.3 the singular includes the plural and vice versa and words
importing the masculine gender include the feminine or neuter
gender;
2.2.4 a reference to a person includes a firm, company, corporation,
authority or body whether incorporated or not;
2.2.5 reference to a Minister, Department, authority, body or person
includes the Minister, Department, authority, body or person for
the time being performing the functions of such Minister,
Department, authority, body or person at the date of this
Agreement; and
2.2.6 a reference to the Explorer includes the employees, servants,
agents, contractors and sub-contractors of the Explorer engaged
for the purposes of the Petroleum Operations and their permitted
invitees and any obligation or duty imposed upon the Explorer
shall, where the Explorer have engaged an agent, contractor or
sub-contractor to undertake any activity which the Explorer is
required or authorized to undertake under this Agreement, be
construed as an obligation or duty upon the Explorer to procure
that its agent, contractor or sub-contractor performs that
obligation or duty.
2.3 The headings in this Agreement shall not be deemed to be a part of
this Agreement and shall not be used in its interpretation or
construction.
2.4 This Agreement shall be governed by and construed in accordance with
the laws of the State of South Australia and each party hereby submits
to the jurisdiction of the appropriate courts of that State and the
Commonwealth and any Courts competent to hear appeals therefrom.
2.5 The Clauses in this Agreement shall prevail over any inconsistent
provisions in any Appendix or Schedule to this Agreement.
2.6 No modification, variation or amendment to this Agreement shall be or
any force unless in writing and executed by each party.
2.7 No waiver by a party of any of the provisions of this Agreement shall
be binding unless made in writing and any such waiver shall relate
only to the specific matter, non-compliance or breach in respect of
which it is given and shall not apply to any subsequent or other
matter, non-compliance or breach.
2.8 This Agreement shall be binding upon and enure to the benefit of the
parties and their respective successors and permitted assigns.
- 6 -
2.9 Each party agrees to execute such deeds and documents and do such
further acts and things as shall be necessary to give effect to this
Agreement.
2.10 If any court or other competent authority declares, or if any statute
or regulation renders any part of this Agreement ineffective, void,
voidable, illegal or unenforceable or if by reason of a declaration by
any Court or other competent authority or any statute or regulation
this Agreement would, if any part hereof were not omitted herefrom, be
ineffective, void, voidable, illegal or unenforceable then:
2.10.1 that part shall, without in any way affecting the
effectiveness, validity, legality or enforce ability of the
remainder of this Agreement, be severable herefrom and this
Agreement shall be read and construed and take effect for all
purposes as if that part were not contained herein; and
2.10.2 the parties shall attempt to renegotiate, in good faith, that
part.
3. CONSENT
Subject to the provisions of this Agreement and in particular Clause 4
hereof, the NTPs hereby grant their permission to the Explorer to carry out
Petroleum Operations under and in accordance with this Agreement upon that
part of the License Area, situated on the Traditional Lands.
4. UNDERTAKING
Having used their best endeavors and having acted with the authority of all
those holders or potential holders of native title as referred to in
Recital J, the NTPs undertake that should any other person, group or
association lodge an Application for a Native Title determination the NTPs
shall use their best endeavors to:-
(a) bring this Agreement to the attention of such applicant; and
(b) have such applicant sign an Annexure to this Agreement binding the
applicant to its terms and conditions including an acknowledgment of
the intent of this Agreement as referred to in recital H.
5. INITIAL SURVEY OF LICENSE AREA BY EXPLORERS
5.1 It is acknowledged between the parties that at the date of execution
of this Agreement the Explorer has not been afforded an opportunity to
enter upon the tenement for the purposes of undertaking an initial
survey ("the Survey") of the License Area.
5.2 Notwithstanding the provisions of this Agreement relating to screening
and clearing of Operational Areas, the NTPs acknowledge that, in order
to efficiently carry out the purposes of this Agreement, it will be
necessary for the Explorer to enter onto the tenement to undertake a
detailed Survey of the License Area and the parties agree that the
conditions contained in Clause 12 hereof do not apply to the Survey
- 6 -
5.3 Within twenty one days of the execution of this Agreement by all
parties, the Explorer shall, pursuant to this Clause 5, provide the
NTPs with sufficient details of the proposed Survey to allow the NTPs
to determine whether a Scouting Team or
Liaison Officer will be required in order for the Explorer to carry
out any part or parts of the survey.
6. CONSIDERATION GIVEN BY THE EXPLORERS
6.1 in consideration for the permission hereby granted by the NTPs in
respect of the carrying out of Petroleum Operations in the License
Area, the Explorer hereby covenants that:
6.1.1 the Explorer shall grant to the NTPs such rights and privileges
as set out in this Agreement; and
6.1.2 subject to compliance on the part of the NTPs with their
obligations hereunder, the Explorer will comply with the terms
and conditions on its part herein contained and shall make
payments to the NTPs of the amounts to which the NTPs are
entitled from time to time as provided in this Agreement;
6.1.3 subject to Clause 6.1.2 the Explorer shall make payments to the
NTPs in relation to Petroleum Operations carried out pursuant
to the PEL in accordance with Schedule 3 hereto;
6.1.4 subject to Clause 6.1.2 where a PPL is applied for and granted
under Clause 24 herein, the Explorer shall make payments to the
NTPs in relation to Petroleum Operations carried out pursuant to
the PPL in accordance with Schedule 4 hereto.
6.2 In the event that at the time a Petroleum Production License is
granted to the Explorer there is:
6.2.1. a native title claimant[s] who has not become a party to this
Agreement; and
6.2.2. no determination of native title in relation to the land
covered by the Petroleum Production License by the National
Native Title Tribunal, Federal Court of Australia, or any other
relevant court with competent jurisdiction; then the Explorer
shall execute a trust deed ('the Trust Deed') with the
Australian Legal Rights Movement Inc. of 231235 King Xxxxxxx
Street, Adelaide, S.A. 5000 ('the ALRM') providing (inter alia)
for -
6.2.3 the benefits paid under this Agreement in relation to Schedule
4 pursuant to Clause 6.1.4 to be paid in to a trust fund to be
administered by the ALRM as trustee, pending the determination
of native title; any interest accruing under the trust fund
shall accrue to the trust fund; and
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6.2.4 upon a determination of native title over the License Area, all
monies held at that time in trust by ALRM pursuant to the Trust
Deed, are to be paid to the native title claimant or claimants
in whose favor the native title determination is made in
accordance with its or their instructions.
6.3 In the event of a determination of native title over the License Area
by the National Native Title Tribunal, Federal Court of Australia or
any other relevant Court with competent jurisdiction wholly in favor
of a native title claimant or claimants not a party to this Agreement,
this Agreement shall thereupon terminate.
7. NOTIFICATION OF OPERATIONS
7.1 Subject to the provisions of Clause 12.10 hereof, the Explorer shall
provide the NTPs at least one month in advance of Petroleum Operations
being conducted in the Operational Area particulars in writing of the
following parts of the proposed operational program, namely:-
7.1.1 the proposed location of seismic lines and access roads;
7.1.2 the proposed approximate location of Work Sites;
7.1.3 the proposed method of seismic operations and other
consequential operations, including exploration drilling and
testing and the proposed use of seismic lines and access roads
in such operations,
7.1.4 the major items of equipment proposed to be used;
7.1.5 the proposed method of disposal of any waste material arising
out of Petroleum Operations;
7.1.6 the proposed method of minimizing environmental disturbance or
pollution, including oil spills and blowouts;
7.1.7 the proposed site and nature of any buildings or structures
(including pipelines and associated facilities); and
7.1.8 any other aspect of the Operational Program which is likely to
have adverse impact upon or cause substantial disturbance to any
part of the tenement which may effect the way of life of the
NTPS.
7.2 If the NTPs are not reasonably satisfied with the particulars of the
Petroleum Operations given pursuant to Clause 7.1 hereof, the NTPs
may, prior to the proposed commencement of Petroleum Operations
request the Explorer to provide, and the Explorer shall provide,
further particulars of such proposed operations insofar as the
particulars relate to the impact upon or disturbance to any part of
the tenement or the way of life of the NTPs.
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7.3 The Explorer shall also give notice to the NTPs if the Explorer at any
time proposes to implement a substantial change in the existing method
of Petroleum Operations.
7.4 In the event that the NTPs have a specific objection to any part of
the particulars of the Petroleum Operations supplied by the Explorer
under Clause 7.1, or to any substantial change therein of which notice
has been given under Clause 7.3, the NTPs shall refer such objection
to the Advisory Committee within thirty days of being supplied with
such particulars or given such notice, and that part of the existing,
intensified or changed operational program to which objection is taken
shall not commence until the Advisory Committee has reached unanimous
agreement. Objection may only be taken where the matter objected to is
likely to have an adverse impact upon or cause substantial disturbance
to any part of the tenement or the way of life of the NTPs. If no such
specific objection is raised within the said thirty day period, the
NTPs shall be deemed to have consented to the proposed Petroleum
operations, subject to Clause 12 and other relevant provisions of this
Agreement.
8. LAND ENTRY AND OCCUPATION
8.1 Upon the execution of this Agreement and until the termination of this
Agreement or, (subject to Clause 21 hereof) earlier cessation or
completion of Petroleum Operations, the Explorer, their contractors,
sub-contractors, employees, agents and visitors shall be permitted in
accordance with the terms and conditions of this Agreement and in
particular to the provisions of Clause 12, to:
8.1.1 enter upon that part of the Traditional Lands situated in the
License Area at all times and commence and proceed with
Petroleum Operations necessary to enable it to carry out its
duties in a satisfactory and efficient manner;
8.1.2 construct necessary access roads across the Traditional Lands
adjacent to the License Area so as to gain access to the License
Area; and
8.1.3 use and draw water from agreed sources and failing agreement, as
determined by the Advisory Committee pursuant to Clause 14.
8.2 The NTPs or any authorized agent of the NTPs possessing written
authority for such purposes from the NTPs may specify in writing, upon
reasonable grounds, that a person or class or persons may not be
permitted access to the License Area and the Explorer shall ensure
that, as far as is possible within their power, such person or persons
shall not enter upon the License Area
9. IDENTIFICATION
9.1 The Explorer shall notify the NTPs of the names of all employees,
contractors, agents, and visitors who will be working on, or visiting
the License Area, such notice to be given fourteen (14) days in
advance in writing.
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9.2 The Explorer shall inform all of its contractors, employees, agents
and visitors, of the obligation upon them to remain within seismic
line access corridors or Work Sites which have been screened and
cleared in accordance with Clause 12 of this Agreement and to comply
with those conditions consistent with this Agreement.
10. PETROLEUM OPERATIONS
The Explorer shall at all times upon the License Area:
10.1 comply with the provisions of the Petroleum Act and the licenses
granted to it thereunder;
10.2 conduct itself in accordance with good and accepted oil field
practice;
10.3 ensure that it Petroleum Operations cause minimum disturbance to the
Traditional Lands and the way of life of the NTPs living within the
Traditional Lands; and
10.4 use good and accepted oil field practice to avoid oil spills or
blowouts.
11. SCOUTING TEAMS
The NTPs in consultation with the Explorer, shall arrange for the
formation of one or more Scouting Teams which shall be constituted
and remunerated in accordance with the provisions set out in Schedule
2 hereof and shall undertake the duties of screening and clearance as
set out in Clause 12 hereof.
12. SCREENING AND CLEARANCE
12.1 The parties acknowledge that this Agreement is made for the purpose,
inter alia, of providing a workable and effective arrangement to avoid
disputes and differences in relation to Areas of Significance.
12.2 In order to protect Areas of Significance, the Explorer shall with the
particulars supplied or in the notice given under Clause 7 hereof,
request clearance from the NTPs before proceeding with any land based
Petroleum Operations in an Operational Area or part thereof which has
not already been screened and cleared by the NTPs pursuant to this
Agreement .
12.3 Subject to Clause 12.4, upon receipt of the aforesaid particulars or
notice, the NTPs shall, in conjunction with the Explorer undertake at
the expense of the Explorer and in accordance with this Agreement, the
Organization and implementation of a screening program by the Scouting
Team of the Operational Area or part thereof referred to in the
aforesaid particulars or notice ("the Area to be Screened").
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12.4 Where the NTPs receive a request for clearance pursuant to Clause 7 or
this Clause 12 in respect of an Operational Area or part thereof and
the Operational Area or part thereof has been the subject of prior
screening and clearance in accordance with the terms and conditions of
this Agreement, the NTPs shall by notice in writing within two (2)
weeks of the request so notify the Explorer that such Operational Area
or part thereof shall be deemed to have been screened and cleared in
accordance with the requirements of this Agreement.
12.5 Subject to religious and/or ceremonial obligations of members of the
NTPs, the tasks of the Scouting Team shall be to:
12.5.1 determine whether proposed seismic lines, access roads or Work
Sites are likely to be in Areas of Significance;
12.5.2 give advance warning to the Explorer's representative attached
to the Scouting Team to enable any representative of the
Explorer to relocate parts of seismic lines, access roads,
or Work sites, in order to avoid Areas of Significance;
12.5.3 show reasonable diligence in preparing for and carrying out
such work, while the Explorer meets its obligations pursuant to
this Agreement; and
12.5.4 make every reasonable endeavor to proceed with its work at a
rate that will avoid any standby of the line clearing and
seismic operations.
12.6 The representative of the Explorer attached to the Scouting Team shall
be responsible for marking the track of the proposed seismic lines,
access roads and Work Sites and for relocating these where there is a
likelihood of Areas of Significance being disturbed by the Petroleum
operations. The NTPs will notify the Explorer in writing of the name
of the anthropologist who shall be responsible for coordination of the
Scouting Team operations.
12.7 The NTPs shall ensure that any Traditional Owners accompanying the
Scouting Team shall have knowledge of the Area to be Screened and
shall have sole responsibility on behalf of the NTPs in determining
whether there are any Areas of Significance within the area to be
screened and the Explorer shall ensure that the area to be screened is
appropriately flagged, including the track of seismic line or access
road and the perimeter of a Work Site.
12.8 The Scouting Team and the Explorer will discuss the methods by which
the Explorer may proceed with Petroleum Operations without entering
any Areas of Significance.
12.9 In the event that it is necessary to deviate any proposed seismic line
or access road, such deviation shall be made as small as possible and
any deviated line or road will be returned to the original planned
line or road as soon as practicable, bearing in mind the proximity of
any Areas of Significance and the need to minimize unduly sharp line
deflections. In the event that relocation of a proposed drill site for
an exploration appraisal or development well is being considered, any
movement of the proposed drill site shall be minimized so far as
possible.
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12.10In the event that the Explorer wishes to make minor modifications or
additions to any part of the program of Petroleum Operations or an
existing cleared seismic line or access road, or to use any existing
water source, the Explorer shall immediately notify the NTPs
accordingly and request that the Scouting Team screens such proposed
modifications, additions, Work Site or water source in accordance with
the provisions of this Agreement. In such case the NTPs shall as soon
as possible and in any event not later than seven days after receipt
of such request, either notify the Explorer in writing of its consent
to such modifications, additions, Work Site or water source, or ensure
the commencement by the Scouting Team of the screening of those areas
as requested by the Explorer, or refer such notification to the
Advisory Committee for its determination and advice.
12.11The Explorer shall follow the flagged seismic lines and access roads
as closely as practicable but in any event shall remain within the
seismic line/access road corridors. Any deviation beyond the seismic
line/access road corridor shall require a further scouting exercise.
12.12Upon screening and clearance of an Operational Area or any part
thereof by the Scouting Team, the Explorer shall be entitled to
commence Petroleum Operations without being required to obtain further
clearance except as otherwise provided in Clauses 12.10. Where an
Operational Area or any part thereof has been screened and cleared
subject to compliance with conditions (if any) specified by the
Scouting Team, the Explorer shall conduct Petroleum Operations thereon
only in accordance with such conditions.
12.13A representative of the Explorer shall accompany the Scouting Team at
all times during its scouting tours and within seven days of the
completion of each scouting tour, the NTPs will notify the Explorer in
writing of the Scouting Team's decisions concerning the acceptability
of proposed locations of the Explorer seismic lines, access roads and
Work Sites. Such notification will specify the proposed locations
which have been screened and cleared for use by the Explorer and the
conditions (if any) attached to that use.
12.14The Explorer shall be absolutely entitled to rely on clearances
notified by the NTPs pursuant to Clause 12.13 and Petroleum Operations
conducted in accordance with such clearances as notified by the NTPs
shall foreclose any future claims that such operations interfered with
any Area of Significance.
12.15Neither the NTPs nor any member of the Scouting Team or Teams shall
be required to disclose to the Explorer or the Operator the location
of any cultural information in relation to any Area of Significance.
12.16During the term of this Agreement and while Petroleum Operations are
conducted within the License Area, the Explorer shall engage the
service of a Liaison Officer as needed to be nominated by the NTPs
whose duties and functions shall include:
12.16.1 liaising between the NTPs and the Traditional Owners and the
Explorer with respect to such matters as the parties may from
time to time agree; coordinating those Traditional Owners
from time to time forming part of the Scouting Team; and
- 12 -
12.16.2 liaising with the Explorer during tours by the Scouting Team.
12.17The costs and expenses of employment of the Liaison Officer and the
reasonable expenses incurred by him or her in carrying out his or her
duties shall be at the expense of the Explorer.
12.18The parties acknowledged that there is no contractual relationship of
any sort whatsoever as between the Explorer and any person employed or
engaged by the NTPs to form part of any Scouting Team, and that
nothing contained in this Agreement will be interpreted or deemed to
constitute any employment or contractual relationship as between such
persons and the Explorer. The NTPs will ensure compliance with the
Workers Rehabilitation and Compensation Xxx 0000, the Occupational
Health, Safety and Welfare Xxx 0000, the Income Tax Assessment 1936
(Cwth) and any other legislation relevant to the terms or basis upon
which the NTPs engage or retain any person to this Agreement.
13. EFFECT OF OPERATIONS ON THE ENVIRONMENT
13.1 The parties acknowledge that a further purpose of this Agreement is
to:
13.1.1 provide a workable and effective arrangement to minimize the
physical, ecological and social effect of Petroleum Operations
conducted by the Explorer in Operational Areas from time to
time
13.1.2 provide that all reasonable steps are taken to ensure the most
effective regeneration of the Operational Areas and any other
parts of the Traditional Lands affected by Petroleum Operations
and
13.1.3 ensure observance of all both Federal and State government
requirements in relation to the environment.
13.2 in order to achieve the objects stated in Clause 13.1 the Explorer
undertakes to comply with the requirements of the Petroleum Act and in
particular to comply with Regulation 16 of the regulations made
thereunder.
14. ADVISORY COMMITTEE
14.1 In order to provide for the smooth working of this Agreement, and the
continuous co-operation of the parties hereto, the parties agree to
form an Advisory Committee, consisting of two members appointed by the
Explorer, and two members appointed by the NTPs. Each member shall
have the right to appoint a proxy to attend on his or her behalf and
to invite a reasonable number of non-members to attend committee
meetings having regard to the matters under discussion.
- 13 -
14.2 The Advisory Committee shall meet on a regular basis and in any event
whenever any member of either party requests a Committee meeting on
twenty one days notice (or such other period as the members may agree)
to be given, together with details of agenda to the members of the
Committee.
14.3 The Committee shall meet at such place and in accordance with such
procedures as the Committee shall determine from time to time and
shall keep minutes which shall be supplied to the Explorer and the
NTPs.
14.4 Unless otherwise specified, the majority decision of the Advisory
Committee shall be the determination of the Committee. In the event of
a deadlock the matter will be resolved as a dispute in accordance with
Clause 33.
14.5 The Explorer shall observe and act in accordance with the decisions of
the Advisory Committee determined in accordance with this Clause 14.
14.6 Costs and expenses incurred by the parties relating to the attendance
of their respective members at meetings of the Committee shall be
borne equally between the parties unless otherwise determined by the
Committee.
14.7 The functions of the Advisory Committee shall include:-
14.7.1 maintaining liaison between the Explorer and the local
Yankunytjatjara and Antakirinja people;
14.7.2 reviewing the working of this Agreement and the progress of
Petroleum Operations hereunder;
14.7.3 making determinations under Clause 12.10 hereof;
14.7.4 receiving and hearing any specific objection or complaint
relating to any part of the Petroleum Operations; and
14.7.5 making recommendations to the Explorer in relation to the
employment of, and appropriate training for Yankunytjatjara
and Antakirinja people and other people entering the
Operational Areas for the purposes of the Petroleum Operations
and in particular, using its best endeavors to ensure that no
incidends occur which degrade, prejudice or besmirch the
customs, lifestyle, race or character of the Yankunytjatjara
and Antakirinja people.
14.8 The parties agree that they will at all times use their best endeavors
to carry out the provisions of this Agreement so that Petroleum
Operations may be conducted efficiently and with adequate regard to
the aspirations and welfare of the Yankunytjatjara and Antakirinja
people affected by the Petroleum Operations.
14.9 The Explorer shall use its best endeavors in consultation with the
NTPs to promote the training referred to in Clause and to utilize the
services of Yankunytjatjara and Antakirinja people in connection with
the Petroleum Operations.
- 14 -
15. REMOVAL OF EMPLOYEES
15.1 Unless the NTPs otherwise agree, the Explorer shall take all
reasonably steps to ensure immediate removal from the License Area of
any contractor, employee, agent, or visitor of any of the Explorer,
who:
15.1.1 has recklessly or willfully trespassed on or in any way
interfered with any Area of Significance;
15.1.2 has recklessly or willfully moved outside any Seismic
line/access road corridor or Work Site;
15.1.3 has violated any of the conditions set out on the contractor's
employee's, agents or visitors identification card or permit;
or/and
15.1.4 has acted in a drunken and disorderly manner on the License
Area or has supplied liquor in an unauthorized fashion to
members of the NTPs;
15.2 In the event of a dispute between the NTPs and the Explorer as to
whether a person has acted in a manner justifying removal from the
License Area the matter shall be referred to the Advisory Committee
for determination.
16. INSTRUCTION IN ABORIGINAL CULTURE
16.1 the Explorer shall promote among non-Aborigines employed in Petroleum
Operations, a knowledge, understanding and respect for the tradition,
language and culture of the Yankunytjatjara and Antakirinja people.
16.2 The Explorer shall ensure that:
16.2.1 all non-Aboriginal employees and personnel are given
appropriate instruction on aspects of Yankunytjatjara and
Antakirinja traditions, history and culture by way of
background and orientation;
16.2.2 all "on-site" supervisory staff are given an initial course and
periodic refresher courses of a more comprehensive and advanced
nature than the instructions envisaged in Clause 16.2.1 above.
16.3 The Explorer shall consult and have regard to the views of the NTPs in
relation to the formulation and presentation of the instruction and
courses referred to in Clause 16.2 hereof. The NTPs shall, whenever
requested by the Explorer to do so, give all reasonable assistance to
the Explorer in attaining the objectives of this Clause 16 and shall
be reimbursed by the Explorer for all reasonable expenses incurred by
it in so doing.
- 15 -
17. EXPLORER COVENANTS
The Explorer covenants with the NTPs that in connection with the
conduct of Petroleum Operations by it on the License Area it shall;
17.1 keep each Work Site to the minimum area considered necessary to
conduct efficient Petroleum Operations;
17.2 take all proper precautions to reduce fire risk on the License Area;
17.3 not make any break in any of the NTPs fences without either promptly
installing an adequate gate or making good the break; and
17.4 ensure all well sites are capped or sufficiently fenced off after
drilling so as to prevent injury to persons or stock.
18. THE NTPs COVENANTS
18.1 The NTPs covenant with the Explorer that the NTPs shall:
18.1.1 not interfere with the conduct of Petroleum Operations upon the
License Area except in accordance with this Agreement; and
18.1.2 not lodge or make any objections to the grant of a renewal of
the PEL to the Explorer for which the Explorer may apply under
the Petroleum Act in respect of the License Area, or, subject
to the Explorer complying with this Agreement, to the granting
to it of a PPL or any renewal or extension thereof of a PPL.
18.2 The NTPs further covenant that they having used their best endeavors
to make a full and proper search for the Traditional Owners of the
License Area they acknowledge that the Explorer has entered into this
Agreement on the basis that the NTPs represent all Traditional Owners
of the License Area and the NYPs hereby indemnify and keep indemnified
the Explorer in respect of any loss, damage or delay occasioned by any
future claim made, pursuant to the Native Xxxxx Xxx 0000 (Cwth),
and/or the Native Title (South Australia) Act 1994 by a third party or
third parties in respect of the License Area.
19. RIGHTS OF TRADITIONAL OWNERS
19.1 The Explorer acknowledges that the members of the NTPs who are the
Traditional Owners, have the right except where their presence may
cause danger to health and safety, or where their presence may
interfere with the conduct of efficient Petroleum Operations:
19.1.1 to move freely throughout the Operational Areas including all
roads thereon;
- 16 -
19.1.2 to establish residents within reasonable proximity to other
residences in any place in the Operational Areas where other
people reside; and
19.1.3 to pursue customary and traditional activities in the
Operational Areas.
19.2 The NTPs, members and agents shall be permitted the use of all roads
constructed for the purpose of Petroleum Operations provided such use
does not interfere with the conduct of efficient Petroleum Operations.
19.3 The use of roads in accordance with this clause shall be subject to
reasonable control by the Explorer for the purpose of safety and to
priority of use by the Explorer for the purpose of Petroleum
Operations.
20. RIGHTS OF EXPLORER
Subject to this Agreement the Explorer shall have the right to
conduct Petroleum Operations in the License Area in accordance with
the terms of this Agreement freely and in an efficient manner without
disturbance or interruption from the NTPs, in order to discharge it's
legal obligations and duties in respect thereof, in particular under
the Petroleum Act and the License and any other legislative or
administrative requirements relating to the carrying out of Petroleum
Operations.
21 REVERSION OF INFRASTRUCTURE
21.1 Within the period of twelve calendar months, or such other time as may
be agreed between the parties, after of the Explorer ceases to have
any right to conduct operations pursuant to the PEL under the
Petroleum Act in the License Area, and it holds no other tenements
under the Petroleum Act in the License Area the Explorer shall remove
from the License Area all infrastructure or facilities constructed for
the purposes of Petroleum Operations, which are capable of removal
other than those which the NTPs agree may remain thereon.
21.2 In the event that the NTPs agree that any or all of the infrastructure
or facilities remain, the Explorer shall not be liable for any state
or condition of repair for such infrastructure or facilities not
removed from the License Area and the NTPs hereby waive and releases
the Explorer from any claim demands costs or expenses made or incurred
by the NTPs in respect of such infrastructure or facilities and will
indemnify the Explorer against any claims demands suits or proceedings
of any third party arising out of the state or condition of repair of
such infrastructure or facilities.
21.3.Any infrastructure or facilities the NTPs do not agree should remain
and are not removed by the Explorer within the period of twelve
calendar months as aforesaid shall become the property of the NTPs
without any payment or assumption of any mortgage, lien or charge
thereof on the part of the NTPs.
21.4.Upon acquisition by the NTPs of such infrastructure or facilities,
the NTPs shall become responsible for the maintenance thereof and
shall maintain where necessary, repair and renovate such facilities as
required. - 17 -
22. INDEMNITY
Subject to Clause 12.17 herein, the NTPs and its employees, agents and
contractors shall be indemnified by the Explorer in respect of all actions,
suits, claims, demands, or cost of third parties arising out of or in connection
with any work carried out by or on behalf of the Explorer pursuant to this
Agreement or relating to the NTPs activities except where such action, suit,
claim, demand or cost arises out of the negligence or willful act or omission of
the NTPS, its employees, agents or contractors.
23. FIELD DEVELOPMENT AND PRODUCTION
The parties acknowledge that at any time during or after completion of the
Petroleum Operations carried out pursuant to PEL, the Explorer may wish to apply
for a PPL under the Petroleum Act in respect of the whole or any part of the
License Area. In the event of the Explorer so applying, and a PPL being granted
by the Minister, unless the parties otherwise agree, the provisions of this
Agreement including the Principles of Agreement contained in Schedule 5 shall
apply in relation to the conduct of Petroleum Operations on the PPL so granted.
24. PETROLEUM PRODUCTION LICENSE
24.1 Where the Explorer intends to make application for a PPL within the
License Area pursuant to the Petroleum Act, the Explorer shall notify
the NTPs of it's intention to lodge such application, at least 30 days
prior to lodgement with the Minister and shall at that time provide to
the NTPs technical and financial data as set out in Schedule 5 herein.
24.2 Where notification is received by the NTPs pursuant to Clause herein
the NTPs shall, subject to the terms and conditions set out in
Schedule 5 herein and in particular upon the payment of past
exploration expenditure as provided for in that Schedule 5, be
entitled to elect to take up to a maximum 10% participatory interest
in any joint venture in respect of the PPL PROVIDED HOWEVER THAT if
the NTPs elect to take up any participatory interest that
participatory interest must be not less than 1 %.
24.3 Where the Explorer makes application for the grant of a PPL pursuant
to the Petroleum Act it shall forward a copy of that application and
all relevant supporting documentation to the NTPs, and the NTPs shall
consent to the grant of the PPL where the application is in
accordance with the terms contemplated in this Agreement,
24.4 Where the Minister grants to the Explorer a PPL the provisions of this
Agreement mutatis mutandis shall apply in respect of any work or
activities conducted by the Explorer within the License Area for so
long as the PPL shall exist and any obligations on the parties
pursuant to the Act shall be deemed to have been met.
- 18 -
25. FORCE MAJEURE
25.1 In the event that the performance of the Agreement by either party is
prevented or delayed in whole or in part by acts of God, flood, fire
or damage caused by lightning, xxxxx, xxxxxxx, unseasonable rains,
strikes, lockouts or other industrial disturbance, riots, blowouts,
laws, rules, regulations, or directions of a governing body having
jurisdiction over the License Area, religious or other ceremonial
activities of members of the NTPs, inability to obtain equipment or
material or any other causes which by the exercise of due diligence
that the party is unable to prevent or overcome ("force majeure"),
this Agreement shall nevertheless continue and remain in force and
effect but that party shall not be in default hereunder for as long as
it continues to be prevented or delayed as aforesaid by such force
majeure and the time within which such party is required to perform
any work to satisfy any obligations hereunder shall be extended by a
period equivalent to that during which such prevention or delay
continues provided that:
25.1.1 the cause of the force majeure as far as possible shall be
remedied with all reasonable dispatch by such party;
25.1.2 neither party shall be required to settle any strike, lockout,
or other industrial disturbance on terms that it does not
regard as satisfactory.
25.2 The party affected by any event of force majeure as aforesaid
shall forthwith give notice in writing thereof to the other party
of the occurrence of such event and the cessation thereof.
26. ASSIGNMENT
26.1 Except as otherwise provided in this Clause 26, the Explorer
shall not transfer the whole or any part of its interests, rights
or obligations under this Agreement.
26.2 The Explorer may transfer the whole or any part of it's
interests, rights or obligations under this Agreement subject to
the conditions hereinafter specified, to any financially
responsible person or persons or corporation (having regard to
the extent of the financial obligations to be assumed by the
proposed transferee) selected by the Explorer. The conditions of
such transfer are:
26.2.1 The NTPs have given their consent in writing to such
transfer, which consent shall not be unreasonably
withheld, and if there are no grounds for reasonably
withholding such consent, then such consent shall be given
as expeditiously as possible and in any event not more
than 30 days from the date of notification of the proposed
transfer. If the NTPs withhold their consent, such
withholding must be accompanied by a written notice
stating in detail the reasons thereof and such notice
shall be given as expeditiously as possible and in any
event not more than 30 days from the date of notification
of the proposed transfer;
- 19 -
26.2.2 the proposed transferee shall execute in favor of the NTPs an
agreement or covenant undertaking to observe and comply with
all the obligations or the Explorer to this Agreement.
27. OPERATIONS
27.1 For the purposes of fulfilling its obligations under the License, the
Explorer may exercise all its rights and perform all its obligations
under this Agreement through an Operator. The Explorer may from time
to time request the approval of the NTPs to the appointment of the
Operator and such approval shall not be unreasonably withheld. The
NTPs shall notify their approval or disapproval of such an Operator
within 28 days of receipt of such request (and no such appointment
shall take place until such approval is given.) The NTPs shall be
entitled to deal with the Operator as though the NTPs were dealing
with the Explorer.
27.2 The NTPs shall be entitled to select and engage all such employees,
agents and independent contractors as are necessary and desirable for
the carrying out of any or all of their obligations under this
Agreement.
28. CONFIDENTIAL INFORMATION
28.1 No party shall advertise, publish or release to anyone other than
another party any information concerning this Agreement or any matter
or thing done or required to be done pursuant thereto. All information
supplied pursuant to this Agreement by one party to this Agreement to
another party to this Agreement (including all information relating to
Areas of Significance) shall be confidential and shall not be released
to a party without the other party's' written consent PROVIDED HOWEVER
THAT:
28.1.1 the Explorer shall be free to make such reports as may be
required either by the rules of any Stock Exchange in Australia
or elsewhere on which shares of such Explorer are listed or by
the laws and regulations of any government or governmental
agency having jurisdiction over such matter or Explorer;
28.1.2 the Explorer may disclose such information except information
identifying Areas of Significance to a third party in
connection with bona fide discussions regarding a proposed
sale of all or part of such Explorer's interest in the License
to that third party or when necessary in connection with
efforts to obtain funds to carry out such Explorer's
reponsibilities hereunder but all such disclosures shall be
made on a confidential basis; and
28.1.3 the NTPs or the Explorer may disclose such information to any
of its bona fide consultants subject to their agreeing to be
bound by the provisions of this Clause 28.
- 20 -
29. TERMINATION
29.1 The NTPs may terminate this Agreement by giving to the Explorer three
months notice in writing only on the following conditions:
29.1.1 in the event that the Explorer fails to pay any monies due to
the NTPs and such default continues for more than 30 days after
receipt of notice of failure to pay, except in the case where a
bona fide dispute as to the liability or amount of monies
payable has arisen;
29.1.2 if the Explorer is in breach of any term or condition of this
Agreement and, if such breach is capable of being remedied,
fails to remedy or commence to remedy such breach within 30
days after receipt of a notice given by the NTPs in writing of
such breach.
29.2 It is specifically agreed and understood that this Agreement shall not
terminate because of any change or reduction of the NTPs entitlements
to payment under any PEL or PPL covering the License Area or' any part
thereof, so long as the Explorer is in compliance with the terms
hereof.
30. TERMINATION OF ACTIVITIES
30.1 The Explorer shall notify the NTPs one month prior to any surrender of
the PEL (or PPL) pursuant to the Petroleum Act.
30.2 A surrender under Clause 30.1 is effective on and from the date the
PEL (or PPL) is effectively surrendered pursuant to the Petroleum Act.
30.3 In the event of such surrender by the Explorer, the consent of the
NTPs to the grant of the PEL (or PPL) shall be deemed to be withdrawn
and to be of no effect as of the effective date or surrender.
30.4 The Explorer shall cease Petroleum Operations immediately the PEL (or
PPL) expires or is surrendered, withdrawn, revoked or cancelled.
30.5 Upon the surrender withdrawal revocation or cancellation of the PEL
(or the PPL) as the case may be:
30.5.1 the Explorer shall pay to the NTPs all monies then payable or
accrued which are due to it pursuant to this Agreement;
30.5.2 except to the extent that entry or occupation is required for
the purposes of Clause 21 the Explorer, their employees,
servants, agents, contractors and/or sub-contractors shall
immediately and permanently leave the License Area;
30.5.3 each party shall remain liable to the other party in respect of
any liability it has to the other as a consequence of any prior
breach of this Agreement;
- 21 -
30.5.4 nothing in this Agreement shall be construed as imposing an
obligation on the Explorer to carry out or complete the
Petroleum Operations;
30.5.5 except as provided in Clause 31 this Agreement shall terminate
when the parties have complied with Clause 30, the PEL (or PPL)
has terminated or has been surrendered, withdrawn, revoked,
cancelled, as the case may be, whichever occurs earlier;
30.5.6 the parties obligations under Clause 13.2, shall to the extent
referred to therein survive any termination of this Agreement
31. CONSEQUENCES OF TERMINATION
Upon termination of this Agreement pursuant to Clauses 6.3 or 30;
31.1 the rights of the Explorer hereunder, unless otherwise provided in
this Agreement, shall thereupon cease without prejudice to any
liability in respect of any antecedent breach or default under this
Agreement; and
31.2 the Explorer shall, without prejudice to its obligations under Clauses
13 and 21.1 hereof, be relieved of all obligations under this
Agreement except those obligations which arose prior to the date of
such termination.
32. COSTS AND PAYMENTS
32.1 The Explorer shall not be liable to pay the wages and expenses of
persons employed by the NTPs, to the extent that such wages and
expenses are already funded by a State or Commonwealth Government.
32.2 The NTPs shall prepare and provide to the Explorer on a monthly basis
or at such other times as may be agreed between the parties, detailed
accounts in respect of scouting activities undertaken by the Scouting
Team at the request of the Explorer in accordance with the schedule of
fees set out in Schedule 2 hereto and, in the absence of any dispute
as to the amount so claimed by the NTPs, the Explorer shall within
thirty days of receipt of such invoice, pay to the NTPs the amount
claimed.
32.3 The Explorer shall make payment to the NTPs of amounts in respect of:
32.3.1 Exploration payments in accordance with the provisions of
Schedule 3 herein;
32.3.2 Compensation payments in accordance with the provisions of
Schedule 4 herein;
32.3.3 Annual advance payments and/or dividends payments in accordance
with the provisions of Schedule 5 herein.
- 22 -
32.4 In the event of a dispute as to the amount or amounts claimed or
payable pursuant to Clauses 32.2 and 32.3 herein, the matter shall be
referred to the Advisory Committee for resolution and in the absence
of agreement the matter shall be referred for arbitration in
accordance with Clause 33 hereof.
33. DISPUTES
33.1 If any dispute or difference arises between the Explorer and the NTPs
in connection with this Agreement, or the rights, duties or
obligations of any party hereunder, the parties shall meet to discuss
the dispute or difference and endeavor to amicably resolve such
dispute or difference by themselves. The parties may, by mutual
agreement, appoint an independent mediator to assist them to negotiate
a resolution of such dispute; the cost of the independent mediator to
be agreed upon by the parties in advance and to be met equally by
them.
33.2 If after discussions the parties are unable to resolve such dispute or
difference, the matter shall be referred to arbitration. The
arbitrator shall be agreed upon between the parties hereto and failing
agreement within one month of one party giving notice of intention to
arbitrate to the others, shall be nominated by the President for the
time being of the Law Society of South Australia.
34. TERM
This Agreement shall commence on the date first appearing herein and shall
continue for the duration of any PEL held by the Explorer in respect of the
License Area or, in the event of application by the Explorer for, and grant to
the Explorer or, a PPL or PPL's for the duration of the PPL, PPL's or until
terminated in accordance with Clauses 6.3, 29 or 30 herein.
35. VARIATION
The parties may from time to time by agreement in writing add to, substitute
for, cancel or vary any of the provisions of this Agreement for the purpose of
more efficiently or satisfactorily implementing or facilitating any of the
objects of this Agreement.
36. FURTHER ASSURANCE
Each of the parties hereto will sign, execute, make and do all such assurances,
documents, acts and things as may be necessary for effectually carrying out the
terms of this Agreement
37 NOTICES
37.1 Any notice, request or other demand or writing required or permitted
to be given hereunder may be duly served or at the option of the party
giving the notice may be validly and sufficiently given if sent by
telex, facsimile or post addressed to:
- 23 -
In the Case of the Explorer to:
Xxxxxx Exploration Pty Ltd
C/- Mc Xxxxxx & Co.
000-000 Xxxxx Xxxxxx
XX Xxx 0000 Xxxxxx Xxxx
XXXXXXXX XX 0000
Telephone: (00) 00000000
Facsimile: (00) 00000000
In the case of Yankunytjatjara Council (Aboriginal
Corporation) to:
Principal Legal Officer,
Pitjantjatjara Council Inc.,
XX Xxx 0000
XXXXX XXXXXXX XX 0000
Telephone: (00) 00 000000
Facsimile: (00) 00000000
In the case of Antakirinja Land Management (Aboriginal Corporation)
to:
Principal Legal Officer,
Aboriginal Legal Rights Movement Inc., Native Title Unit,
321 - 325 King Xxxxxxx Street,
ADELAIDE, S.A. 5000
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
In the case of XXXXX XXXXX, XXXX XXXXX,
XXXXX XXXX, XXXXX XXXXXX, XXXXXX XXXXXX and
XXXXXX XXXXXXXX to:
Principal Legal Officer,
Aboriginal Legal Rights Movement Inc., Native Title Unit,
321 - 325 King Xxxxxxx Street,
ADELAIDE, S.A. 5000
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
- 24 -
In the case of XXXXXXX XXXXXXX XXXXXX Snr,
XXXXXX XXXXXXX, XXX XXXXXXX and XXXXX XXXXX to;
Principal Legal Officer,
Aboriginal Legal Rights Movement Inc.,
Native Title Unit,
321-325 King Xxxxxxx Street,
ADELAIDE, S.A. 5000
Telephone [08[ 00000000
Facsimile [08] 82117424
37.2 FOR THE PURPOSES OF THIS AGREEMENT A NOTICE SERVED ON THE EXPLORER BY THE
PRINCIPAL LEGAL OFFICER, ABORIGINAL LEGAL RIGHTS MOVEMENT INC NATIVE TITLE
UNIT PURPORTING TO BE FOR AND ON BEHALF OF THE NTPS SHALL BE DEEMED TO BE
SERVED ON THE EXPLORER
BY THE NTPS.
- 25 -
IN WITNESS WHEREOF the parties have set their hands and seals the day and year
first hereinbefore written.
THE COMMON SEAL of
YANKUNYTJATJARA
COUNCIL (ABORIGINAL CORPORATION) was hereto affixed with the authority of the
Executive Board in the presence of five members thereof, who hereby certify that
this act is done in conformity with a resolution of Yankunytjatjara Council
(Aboriginal Corporation)
THE COMMON SEAL of
ANTAKIRINJA LAND
MANAGEMENT
(ABORIGINAL
CORPORATION) was hereto affixed with the authority of the Executive Board in the
presence of three members thereof, who hereby certify that this act is done in
conformity with a resolution of Yankunytjatjara Council (Aboriginal Corporation)
- 26 -
Signed by the said XXXXX XXXXX in the presence of:
Signed by the said XXXX XXXXX in the presence of:
Signed by the said XXXXX XXXX in the presence of:
Signed by the said XXXXX XXXXXX in the presence of:
Signed by the said XXXXXX XXXXXX in the presence of:
Signed by the said XXXXXX XXXXXXXX in the presence of:
Signed by the said XXXXXXX XXXXXX Snr in the presence of:
Signed by the said XXXXXX XXXXXXX in the presence of:
Signed by the said XXX XXXXXXX in the presence of:
Signed by the said XXXXX XXXXX in the presence of:
- 27 -
THE COMMON SEAL of
XXXXXX EXPLORATION PTY LTD was affixed hereto dated this 9th day of APRIL 1998
in the presence of:
---------------------
DIRECT
---------------------
SECRETARY
- 28 -
Schedule
Description of the License Area:
All that part of the State of South Australia bounded as follows:-
Commencing at a point being at the intersection of latitude 27(Degree)00'S and
longitude 134(Degree)10'E, thence south to latitude 28(Degree)10'S, west to
longitude 133(Degree)31'E, south to latitude 28(Degree)35'S, west to longitude
133(Degree)00'E, north to the southern boundary of the Pitjantjatjara Lands,
thence generally north easterly along the boundary of the said lands to latitude
27(Degree)00'S, and east to a point of commencement, all within latitudes and
longitudes being geodetic and expressed in the terms of the Australian Geodetic
Datum as defined on page 4984 of the Commonwealth Gazette No. 84 dated 6 October
1966.
AREA: 10930 square kilometers (approximately)
- 29 -
Schedule 2
1. The NTPs will provide a Scouting Team or Teams to undertake screening and
clearing of Petroleum Operations within the License Area if and when the
requirement arises in accordance with Clause 7 of this Agreement. The
composition of the Scouting Team or Teams may vary from time to time as
determined by the NTPs in consultation with the Explorer provided that the
Scouting Team or Teams will at no time comprise more than four male and
four female members of the NTPs.
2. The NTPs will ensure that both a male and/or a female anthropologist are
available to join the Scouting Team depending on the part of the License
Area under consideration at any given time and the Area or Areas of
Significance that may be therein.
3. The male anthropologist appointed by the NTPs will coordinate the Scouting
Teams provided for in Clause 11 of this Agreement and will be responsible
for conveying the results of the Scouting Team's determinations and
assessments of the Explorer's Petroleum Operations under the terms of this
Agreement.
4. Subject to this Agreement, the NTPs will ensure that the Scouting Team is
available to undertake additional anthropological assessment in respect of
campsites and bore sites as and when such sites are required by the
Explorer in the course of carrying out the Petroleum Operations. Where such
additional anthropological assessment is required, the NTPs will ensure
that the Scouting Team operates on a regular work schedule that coincides
with the work schedule of the Explorer.
5. The NTPs will arrange suitable camping facilities for the Scouting Team.
6. The NTPs will ensure that a Traditional Owner or Owners (but in event not
exceeding three persons) with first hand knowledge of Areas of Significance
in the particular Operational Area, together with the appropriate support
equipment, are available for Scouting purposes.
7. The NTPs will provide an all terrain four-wheel drive vehicle for use by
the Scouting Team while it is undertaking the anthropological assessment
and thereafter for use by the Liaison Officer in carrying out his or her
duties pursuant to this Agreement. Provided however that in the event that
the Scouting Team and the Liaison Officer are both doing work associated
with the Scouting Operations at the same time, they will share the use of
the vehicle.
8. The said vehicle will be insured by the NTPs and equipped by the NTPs with
sufficient spare parts.
9. The NTPs will cause a log-book to be kept and will ensure that the
following information is recorded in the log book in relation to the use of
the 4 WD vehicle:
(a) date;
(b) place of departure;
(c) destination;
(d) reason for the journey; - 30 -
(e) name of driver; and
(f) number of kilometers traveled in respect of each occasion that the 4
WD vehicle is used for or incidental to the carrying out of the
Scouting Operations and will make the log-book available to the
Explorer upon request.
10. The Explorer will reimburse the NTPs for its costs in: (a) employing the
services of the persons comprising the Scouting Team; (b) providing food to
the Scouting Team; and (c) providing a 4 wheel drive vehicle for use by the
Scouting Team in accordance with the scale set out in paragraph 12 herein.
11. In the event that there are at any time more than three Traditional Owners
forming part of the Scouting Team the Explorer shall not be responsible for
the expense of the additional persons in such group, unless otherwise
agreed between the parties.
12. Remuneration
12.1 Scouting Team Members:
12.1.2 The NTPs members (max. four male and four female at any one
time) Duty rate
12.2 Food for Scouting Team:
The Explorer will pay the NTPs the sum of $30.00 per day by way of
food allowance in respect of each member of the Scouting Team for each
day that such member is on duty in the License Area or travelling to
or from the License Area.
12.3 Four Wheel Drive Vehicle:
The Explorer will pay to the NTPs the sum of 55 cents per kilometer in
respect of the total number of kilometers recorded in the log-book as
having been traveled by the 4 wheel drive vehicle where the vehicle
was being used by the Scouting Team or the Liaison Officer for or
incidental to the carrying out of the Petroleum Operations, provided
that the Explorer will not be required to pay the abovementioned rate
per kilometer in respect of kilometers recorded in the log-book unless
the information referred to in paragraph 9 hereof has been recorded to
the satisfaction of the Explorer
- 31 -
Schedule 3
Payments to the NTPs pursuant to Clause 6.1.3 of the Agreement
in respect of Petroleum Operations under the PEL
1. The Explorer agrees to pay to the NTPs an amount equal to the following
percentages of Annual Exploration Expenditure (as hereinafter defined)
("AEE");
1.1 2.55% of such amount of AEE which is less than or equal to $500,000.00
per annum; and
1.2 1.5% of such amount of AEE which exceeds $500,000.00 per annum.
"Annual Exploration Expenditure" means:
All expenses incurred in any one year in respect of exploration carried out on
the License Area as are required to be reported to the Minister pursuant to
Subsections 18d and e of the Petroleum Act, save and excluding such expenses as
may reasonably be defined as administrative or managerial in nature; legal,
accounting and/or consultants fees; off-site travelling costs together with any
other expenses which may reasonably be characterized as off-site expenses
whether or not such costs may be, or may be required to be, included in any
report of exploration expenditure provided to the Minister.
2. Notwithstanding the above provision, the Explorer will make a guaranteed
minimum payment of $20,000.00 in respect of a calendar year in which
on-site Petroleum Operations are carried out pursuant to the PEL.
3. Subject to the terms and conditions set out in the Agreement, the Explorer
shall:
3.1 prior to 23 May 1998 make the initial payment of the amount set out in
paragraph 2 herein and thereafter annually for the duration of each
the PEL;
3.2 within ninety (90) days of the end of each calendar year make payment
to the NTPs of the amount or amounts set out in paragraph 1 herein
less an amount in respect of any minimum payment pursuant to paragraph
2 herein already made.
If the report pursuant to Sections 18d and 18e has not been forwarded
to the Minister for Mines & Energy within ninety (90) days of the end
of each calendar year, the Explorer is to make its best estimate of
AEE and make any payment due on the basis of that estimate,
adjustments shall be made within one month after the final report to
the Minister is submitted.
4. For the purposes of this Schedule each calendar year shall be deemed to
commence as at the date of grant of the PEL and subsequently on the
anniversary of the date of such grant.
- 32 -
Schedule 4
Payments to the NTPs pursuant to Clause 6.1.4 of the Agreement
in respect of Petroleum Operations under the PPL
1. Application of Schedule 4
Save as otherwise provided in the Agreement and in particular as provided
in Schedule 5 hereto, this Schedule shall apply to payments to the NTPs in
the event that the NTPs elect not to exercise or is deemed not to have
exercised its rights pursuant to Clause 24.2 of the Agreement.
2. Compensation Payments
Subject to paragraph 4 the Explorer shall pay to the NTPs in respect of the
production of all Petroleum, the following amounts by way of compensation:
2.1 in respect of production up to and including 8,000,000 barrels of oil
(or barrels of oil equivalent), 1% of the value at the well head of
Petroleum produced and sold;
2.2 in respect of production from 8,000,001 to 14,000,000 barrels of oil
(or barrels of oil equivalent), 1.5% of the value at the well head of
Petroleum produced and sold;
2.3 in respect of production from 14,000,001 to 20,000,000 barrels of oil
(or barrels of oil equivalent), 2% of the value at the well head of
Petroleum produced and sold;
2.4 in respect of production from 20,000,001 to 30,000,000 barrels of oil
(or barrels of oil equivalent), 2.5% of the value at the well head of
Petroleum produced and sold;
2.5 in respect of production in excess of 30,000,001 barrels of oil (or
barrels of oil equivalent), 3% of the value at the well head of
Petroleum produced and sold.
3. Calculation of Payments
The payments referred to in paragraph 2 herein are to be calculated as follows:
3.1 Value at the well head of Petroleum produced and sold is to be
calculated in the same way that "value at the well head of Petroleum"
is calculated pursuant to section 35(6) of the Petroleum Act where the
sale price is bona fide and to an arms length purchaser PROVIDED that
the "Guidelines for Payment of Royalty and Provision of Information"
issued by the Department of Mines & Energy of South Australia, a copy
of which is annexed to this Schedule 4, shall be applied mutatis
mutandis as if the reference to the royalty rate of 10% therein were a
reference to the relevant percentage rate of compensation referred to
in paragraph 2 herein;
3.2 subject only to paragraphs 3.3 and 3.4 herein, the minimum sale price
of oil shall be deemed to be $24.00 per barrel (the "floor price");
- 33 -
3.3 in the event of an increase in the sale price of oil per barrel of
$2.00 or more above the floor price, which increase remains constant
for a minimum period of 30 consecutive days, then for each such
increase of $2.00 the percentage production payments set out in
paragraph 2 herein shall increase correspondingly by an amount of
0.125%;
3.4 subject to paragraph 3.2 herein, where the sale price of oil per
barrel decreases by $2.00 or more, which decrease remains constant for
a minimum period of thirty consecutive days, then for each such
decrease of $2.00 the percentage production payments set out in
paragraph 2 herein shall decrease correspondingly by an amount of
0.125%;
3.5 a ceiling sale price of $45.00 per barrel of oil shall apply to the
percentage increases referred to in paragraph 3.3 herein and no
percentage increase shall apply to sale price increases in excess of
$45.00 per barrel.
4. Conversion rates from Oil to other Petroleum products
For the purposes of the determination of the barrels of oil equivalent as
referred to in paragraph 2 herein, the following conversion table shall apply:
Petroleum Product Volume Equivalent to:
----------------- ---------------- -----------------
Crude Oil 1 Barrel 1 B.O.E.
Sales Gas 1 Petajoule 174.937 B.O.E. x 10 3
Condensate/Naphtha 1 Barrel 0.935 B.O.E.
LPG 1 tonne 8.458 B.O.E.
5. Identification of Field Size
5.1 The Explorer shall within a reasonable time period and in any event
within 5 years from the date of grant of the PPL, prepare a reserves
assessment report of the producible field, subject of the PPL and
shall provide to the NTPs a copy of the report.
5.2 The NTPs shall, within a period of six months from the date of receipt
of the report referred to in paragraph 5.1 herein, be entitled to
dispute the finding made therein.
5.3 In the event that the NTPs disputes the assessment in accordance with
paragraph 5.2 herein, it shall provide to the Explorer a notice of
dispute in writing setting out detailed reasons for such dispute
within the said six month period.
5.4 Where the NTPs do not notify the Explorer in accordance with paragraph
5.3 herein, the NTPs shall be deemed to have accepted the Explorer
report and the Explorer shall be entitled to base their calculations
in respect of adjustment of compensation payments set out in paragraph
6 herein on that assessment.
- 34 -
5.5 Where the NTPs notify the Explorer pursuant to paragraph 5.2 herein
and an agreement as to the volume of reserves assessed in respect of
the relevant producible field cannot be reached, the matter shall be
resolved by reference to an independent expert appointed by the
parties who shall determine the extent of reserves and whose opinion
shall be final and binding on the parties. Costs in respect of the
appointment of the independent expert shall be borne equally between
the Explorer and the NTPS.
6. Adjustment of Compensation Payments - Field Decline
6.1 If in the Operator's opinion the relevant field has gone or is to go
into decline, the Operator shall give the NTPs notice to that effect,
and:
6.1.1 the parties shall meet and negotiate and use their best
endeavors to agree upon a date on and from which the relevant
field has gone or is to go into decline (the "Relevant Date").
6.1.2 the Relevant Date shall be determined on the basis of the field
reserves assessment report referred to in paragraph 5.1 herein
which shall set out the estimated remaining reserves as a
percentage of the total estimated field and shall further set
out the point at which the field shall be deemed to have gone
or is to go into decline as a percentage of the total estimated
field (the "Relevant Percentage") PROVIDED HOWEVER that the
Relavant Percentage shall be no less than 50% and no more than
70% of the total estimated field;
6.1.3 if within 60 days from the giving of the notice referred to in
paragraph 6.1 herein, the parties are unable to agree, the
Chief Executive Officer of Mines & Energy South Australia shall
be requested to nominate and appoint an independent qualified
reservoir engineer who shall carry out a study to determine the
Relevant Date on and from which the relevant field has gone or
is to go into decline and who in so doing shall act as an
expert and whose opinion and study shall be final and binding
on the parties.
6.2 On and as from the Relevant Date, compensation payments to the NTPs as
set out in paragraph 2 herein shall be reduced by an amount of 0.5% of
the value at the well head of Petroleum produced and sold for each
additional 10% of the total estimated field produced in excess of the
Relevant Percentage, PROVIDED HOWEVER that the minimum percentage of
compensation payable to the NTPs pursuant to this paragraph shall be
1.5% of the value at the well head of petroleum produced and sold.
7. Time for Payment
Payments due to the NTPs as calculated in accordance with paragraphs 2 and 3
herein shall be made by the Explorer and/or the Operator within 30 days after
the last day of each calendar month in which the Petroleum in respect of which
such compensation applies was sold, or within 30 days after the last day of the
calendar month in which payment is actually received by the party selling the
Petroleum or other Product, whichever is the earlier date.
- 35 -
8. Adjustment of Compensation Payments
8.1 The Explorer shall at the Explorer's expense provide to the NTPs,
within 90 days after the end of each License Year commencing with the
License Year in which production of Petroleum first occurs from the
License Area, a report setting out the amount of Petroleum produced
and sold during the preceding License Year, calculations of the
proceeds attributable to the NTPs in accordance with this Schedule 4
for such year, and providing such other information as the NTPs shall
reasonably request.
8.2 If any such report indicates that payments actually made to the NTPs
were less than the amount reflected as being payable, the amount of
the difference plus interest at 2 percentage points above the then
prevailing interest rate as charged by the ANZ bank for loans less
than $100,000.00 shall be promptly adjusted by an appropriate
balancing payment to the NTPs .
8.3 If any such report indicates that payments actually made to the NTPs
were greater than the amount reflected as being payable, the amount of
the difference shall be promptly adjusted by an appropriate deduction
from the first month or months, as appropriate, payment to the NTPs of
its due entitlements pursuant to this Schedule 5.
9. Auditing
9.1 The Explorer shall cause to be kept and maintained complete books and
records in respect of the NTPs entitlements pursuant to this Schedule
4 and shall retain such books and records for at least five years.
9.2 The NTPs, upon at least thirty days advance written notice to the
Explorer and/or any interested third party or third parties (the
"Third Party"), shall have the right, at its sole expense to audit the
books and related records for any License Year or proportion thereof
within the 12 month period following the end of the License Year to
which they relate.
9.3 All bills and statements rendered to the NTPs by the Explorer and/or
the Third Party during any License Year shall conclusively be presumed
to be true and correct after 12 months following the end of any such
License Year unless within the said 12 month period the NTPs takes
written exception thereto and make claim for adjustment.
9.4 The conducting of an audit shall not extend the time for the taking of
written exception to and the adjustment of accounts as provided above.
9.5 If any such audit demonstrates that amounts owing to the NTPs have
been underpaid by more than 10% then, provided the NTPs protests
within six months from the close of the calendar year being audited,
in addition to promptly making a balancing payment with interest to
the NTPs , the Explorer and/or the Third Party, shall in accordance
with their respective participation interests reimburse the NTPs for
the expense of the audit.
- 36 -
Schedule 5
Principles for Agreement on the grant of a Petroleum
Production License
1. Definitions
Unless otherwise defined in this Schedule, the Definitions of Clause 1 of the
Principal Agreement apply to this schedule.
1.1 "Principal Agreement" Means the Agreement signed by the NTPs and the
Explorer on ___ day of ________ 1998;
1.2 "Petroleum Operations" Means the operations for the exploration and
recovery of Petroleum, by the Explorer and the
License Area and any production therefrom;
1.3 "Petroleum Operations
Area Means the area of land required for the purpose
of the Petroleum Operations, including any access
roads and airstrips on the tenement;
1.4 "Joint Venture
Agreement" Means any agreement entered into by the Explorer
and a third party or third parties and/or
production within the License Area (the "JVA")
1.5 "Joint Venture
Participants" Means all parties (excluding the NTPs) to the
JVA (the "JV Participants")
2. Principles of Agreement
2.1 Subject to the Act and the terms and conditions of the Principal
Agreement the parties wish to record certain principles of agreement
setting out terms and conditions as to payments and other terms and
conditions for the purpose of Clause 23 of the Principal Agreement.
2.2 It is acknowledged that at the date these principles have been agreed
the location, quantity of reserves and characteristics of any
Petroleum deposits which may be discovered are entirely unknown and
that, between the date hereof and the date of an application for and
the grant of PPL, economic conditions (including government levies and
taxes) affecting the development of Petroleum xxxxx and the sale of
Petroleum products may alter considerably.
2.3 The parties have agreed that any agreement entered into by the parties
pursuant to Clause 23 of the Principal Agreement shall contain terms
and conditions incorporating the principles set out in this Schedule
and where the matter is not specifically dealt with in this Schedule,
as agreed.
- 37 -
3. Option to Take up Participatory Interest
The election right afforded to the NTPs in Clause 24 of the Principal Agreement
shall be exercised as follows:
3.1 The Explorer shall by notice in writing advise the NTPs 30 days prior
to lodging an application for grant of a PPL within the License Area
with the Minister, of their intention to lodge such application ("the
Date of Notification").
3.2 The notification referred to in paragraph 3.1 herein shall include
such technical and financial information as necessary to enable the
NTPs to make an informed decision whether or not to take up its
participatory interest pursuant to Clause 24 of the Principal
Agreement and in particular such information shall include details of
past exploration expenditure, a copy of the PPL application, and an
assessment of anticipated future expenditure in relation to the PEL
and PPL.
3.3 The NTPs may, within 30 days of the date the Date of Notification, by
notice given in writing to the Explorer and/or the JV Participants (as
the case may be), make a once only election to take up a participatory
interest of up to 1 0 % but in any event no less than 1 % in the JVA
and failure to so notify the Explorer and/or the JV Participants
within the said time period shall be deemed to be a forfeiture on the
part of the NTPs of their election rights pursuant to Clause 24.1 of
the Principal Agreement.
In the event that at the time of the election there is no JVA
applicable in respect of the License Area, the Explorer and the NTPs
agree to enter into an agreement with each other for the conduct of
Petroleum Operations within the License Area and such agreement shall
be deemed a JVA as that term is defined in this Schedule S.
3.4 The NTPs election to take up its participatory interest shall be
conditional upon the NTPs entering into an undertaking to bear 100% of
the costs and obligations of its participatory interest and the NTPs
shall within 30 days of the Date of Notification, pay to the Explorer
and or the JV Participants an amount in respect of past exploration
expenditure proportional to the NTPs elected participatory interest
and failure to make such payment within the said time period shall be
deemed to be a forfeiture on the part of the NTPs of its election
rights pursuant to Clause 24.2 of the Principal Agreement,
notwithstanding any notice which may have been given pursuant to
paragraph 3.3 herein.
For the purpose of this paragraph 3.4 "past exploration expenditure"
shall include all costs charges and expenses related to the operation,
administration and management of the PEL up to the date of election by
the NTPs as provided for in Clause 24.2 of the Principal Agreement.
3.5 Subject to paragraphs 3.3 and 3.4 herein, the NTPs shall be entitled
to take up their participatory interest in any existing or subsequent
JVA in respect of the License Area and the Explorer covenant that, in
the event that the Explorer enters into a JVA with a third party or
third parties prior to the Date of Notification, the terms of such
agreement will be such as to protect the possible future participatory
interest of the NTPs and will provide an appropriate mechanism whereby
the NTPs is guaranteed the opportunity to elect to take up an interest
in such JVA of up to 1 0%; - 38 -
3.6 3.6.1 Where a JVA applies in respect of the whole of the License
Area, the NTPs election right relates only to the first PPL
applied for within the License Area and once exercised or
forfeited cannot subsequently be exercised in respect of
additional PPL's applied for or granted within the License
Area.
3.6.2 However, should the License Area be divided into sub-blocks or
sub-areas then the NTPs shall have an election right in respect
of the first PPL applied for within each relevant subarea or
sub-block. Once exercised or forfeited in respect of any
particular sub-block or sub-area the election right cannot
subsequently be exercised in respect of additional PPLs applied
for or granted within that particular sub-area or sub-block
but may be exercised in respect of the first PPL applied for
within any other-sub area or sub-block in respect of which
the election right has not been exercised or forfeited.
3.7 Subject to the anticipated production from the PPL being sustainable
at the rate of 2500 barrels of oil (or oil equivalent) per day which
decision shall be made by the Explorer and where the NTPs elect to
take up its participatory interest, the Explorer and/or the JV
Participants shall cause to be made to the NTPs, upon commencement of
actual production following the grant of a PPL an annual advance
payment of the following sums to be deducted from compensation
payments payable to the NTPs in any one production year:
3.7.1where annual production is less than or equal to 10,000,000
barrels of oil (or barrels of oil equivalent), the sum of
$100,000.00;
3.7.2where annual production is greater than 10,000,000 but less than
or equal to 20,000,000 barrels of oil (or barrels of oil
equivalent), the sum of $150,000.00;
3.7.3where annual production is greater than 20,000,000 barrels of
oil (or barrels of oil equivalent), the sum of $200,000.00.
3.8 The NTPs agree to comply with all of its obligations under the JVA and
in particular agrees:
3.8.1to satisfy any shortfall between annual advance payments and
obligations in respect of its participatory interest (the
"shortfall") from predicted production compensation payments; and
3.8.2where compensation payments are insufficient to meet the
shortfall, from any dividend payable to the NTPs in respect of
its participatory interest in any one License Year.
4. Application of Schedules 3 and 4 to these Principles of Agreement
Whether or not the NTPs elects to take up its participatory interest (or fails
to exercise its right to do so), compensation payments to the NTPs shall be made
in accordance with the terms of payment set out in Schedule 3 of the Principal
Agreement, and where the NTPs elects to take up its participatory interest, the
payments referred to in Schedules 3 and 4 of the Principal Agreement shall be in
addition to any dividend to which the NTPs may be entitled in respect of its
participatory interest in the JVA.
- 39 -
5. Participation and Voting Rights
The NTPs participation in a JVA shall be on the same terms and conditions as
apply to other JV Participants and the Explorer covenants that any JVA entered
into shall allow for the NTPs upon taking up its participatory interest, to
exercise full voting rights, and further covenants that no special voting rights
shall be given to any other JV Participant without the express agreement of the
NTPs thereto.
6. Independent Audit
Upon the giving of prior notice to the Explorer, the NTPs shall, through an
independent auditor reasonably acceptable to the explorer, and whose appointment
shall be to the cost of the NTPs have the right to be provided with and have
access to inspect and copy information relevant to the calculation of statutory
royalties and to the calculation of any payments payable pursuant to the
Principal Agreement and or this Schedule.
7. Term of Agreement
The parties shall ensure that subject to Clause 30 of the Principal Agreement,
the JVA shall continue in force until the expiration of twenty-one years from
the date of grant of the PPL.
8. Extension of Term
The NTPs agree that, provided the Explorer has substantially complied with their
obligations under the JVA, it will at the request of the Explorer made within
five years prior to the date upon which the JVA terminates under paragraph 7
herein, enter into good faith negotiations with the Explorer and any other
relevant party or parties with a view to reaching agreement on terms and
conditions for a renewal of the JVA after expiration thereof, and that it will
commence such negotiations within thirty days after receiving such request.
9. Arbitration
In the event that the parties cannot agree on the terms and conditions of a
renewal of the JVA then either the Explorer or the NTPs may serve notice upon
the other requiring that they or it submit to arbitration to determine the terms
and conditions for a renewal of the JVA and the arbitrator's decision will be
binding on the parties.
10. Additional Terms and Conditions
In addition to the foregoing, the JVA shall contain such terms and conditions as
may reasonably relate to the Petroleum Operations and to the use and occupation
of the tenement, including terms and conditions dealing with matters
specifically dealt with in the Principal Agreement which may be applied mutatis
mutandis or otherwise amended to fit the circumstances of the JVA.
- 40 -
