Attached files
DEED
(PURSUANT TO SECTION 31 OF THE NATIVE TITLE ACT 1993)
_________________________________________________________
Date June 2012
Parties
1 HONOURABLE TOM KOUTSANTONIS MINISTER FOR MINERAL RESOURCES AND ENERGY of
Level 8, Terrace Towers 178 North Terrace Adelaide South Australia 5000 for and
on behalf of the State of South Australia, (the "STATE")
2 DISCOVERY ENERGY SA LTD ACN 158 204 052 the registered office of which is
Level 8, 350 Collins Street Melbourne Victoria 3000 (the "COMPANY")
3 EDWARD LANDER, RHONDA GEPP-KENNEDY, NAME WITHHELD FOR CULTURAL REASONS,,
SYLVIA STUART, IRENE KEMP AND DAVID MUNGERANNIE, for and behalf of the Dieri
Native Title Holders c/o Camatta Lempens, Level 1, 345 King William Street
Adelaide South Australia 5000 (the "NATIVE TITLE HOLDERS")
4 DIERI ABORIGINAL CORPORATION c/o PO Box 607, Port Augusta South Australia
(the"ASSOCIATION")
Recitals
WHEREAS:
A. The Company is the applicant for the grant of Petroleum Exploration
Licence/s under the Petroleum Act in respect of Petroleum Exploration Licence
Application number 512 ("the PELA/S") in respect of the areas described in
Schedule 1 and seeks the issue of the Licence/s pursuant to the Petroleum Act;
B. If grant of the Licence/s affects native title it will be a future act as
defined in the Native Title Act;
C. The State has caused a Notice to be published pursuant to Subdivision P,
Division 3 of Part 2 of the Native Title Act ("RIGHT TO NEGOTIATE PROVISIONS")
on 16 December 2009 advising of the State's intention to grant Licence/s in
respect of the PELA/S pursuant to the Petroleum Act;
D. The Native Title Holders hold native title over land and waters within
the Licence Area as determined in the Federal Court of Australia in Federal
Court file number SAD 6017 of 1998 by consent of the parties thereto on 1 May
2012;
E. The members of the Association applied for and have been incorporated
under the Aboriginal Councils Associations Act 1976 (Commonwealth) as the Dieri
Aboriginal Corporation;
F. The area of the Native Title Determination relates to or affects all or
some portion of the PELA/S as more particularly identified on the map attached
as Schedule 1;
G. The parties have negotiated in good faith under Right to Negotiate
Provisions in relation to the State's intention to grant the Licence/s;
H. The issuing of the Licence/s is subject to the non-extinguishment
principle, as defined in section 238 of the Native Title Act;
I. If the Licence/s are issued to the Company in accordance with the
Petroleum Act it is the intention of the parties that the grant of the
Licence/s, and any work done pursuant to them, affects any native title rights
and interests held by the Native Title Holders, if at all, only to the extent
necessary for the grant of the Licence/s and carrying out work pursuant to them,
and it is the further intention of the parties that in any event, the grant of
the Licence/s and activities under them will not extinguish or permanently
affect such rights and interests; and
J. Following negotiations in good faith between the parties, the Native
Title Holders have agreed to the grant of the Licence/s to the Company on the
terms set out in this Deed.
NOW IT IS AGREED as follows.
1. INTERPRETATION
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1.1 In this Deed, and in the Recitals, Schedules and the Annexures to the
Schedules, unless the contrary intention appears:
(a) A reference to any legislation or legislative provision includes any
statutory modification or re-enactment of, or legislative provision substituted
for, and any subordinate legislation issued under, that legislation or
legislative provision;
(b) The singular includes the plural and vice versa and reference to a
gender includes each other gender;
(c) A reference to an individual or person includes a corporation,
partnership, joint venture, association, authority, trust, state or government
and vice versa;
(d) A reference to a recital, clause, schedule or annexure is to a recital,
clause schedule or annexure of or to this Deed;
(e) Recitals, Schedules and the Annexures to the Schedules form part of this
Deed;
(f) A reference to any agreement or document is to that agreement or
document as amended, novated, supplemented or replaced from time to time;
(g) A reference to any party to this Deed includes that party's executors,
administrators, substitutes, successors and permitted assigns;
(h) Where an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning;
(i) "Business Day" means:
(1) for receiving a notice under clause 15, a day that is not a Saturday,
Sunday, public holiday or bank holiday in the place where the notice is sent;
and
(2) for all other purposes, a day that is not a Saturday, Sunday, bank
holiday or public holiday in South Australia, Australia;
(j) An agreement, representation or warranty on the part of or in favour of
two or more persons binds or is for the benefit of them jointly and severally
unless otherwise stated herein;
(k) A reference to anything is a reference to the whole or any part of it
and a reference to a group of persons is a reference to any one or more of them;
(l) A reference to any right, permit, authority, licence, or interest
granted pursuant to the Petroleum Act includes any further or other right,
permit, authority, licence or other interest derived from any of them or
otherwise granted or issued under the Petroleum Act and any variation, renewal,
extension and substitution of any of them or any part of any of them;
(m) The meaning of general words followed by specific words will not be
limited by reference to the specific words;
(n) Monetary references are references to Australian currency;
(o) A provision must not be construed against a party only because that
party prepared it;
(p) If any Court or other competent authority declares, or if any statute or
regulation renders, any part of this Deed 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 Deed would, if any part
hereof were not omitted therefrom, be ineffective, void, voidable, illegal or
unenforceable then:
(1) that part shall, without in any way affecting the effectiveness,
validity, legality or enforceability of the remainder of this Deed, be severable
therefrom, and this Deed shall be read and construed and take effect for all
purposes as if that part were not contained herein;
(2) the parties shall attempt to renegotiate, in good faith, that part and
seek to achieve a result as near as reasonably practicable as is consistent with
the severed component (and in particular to ensure the validity of an agreement
of the kind contemplated by section 31(1)(b) of the Native Title Act for the
purpose of the valid grant of a Licence); and
(3) PROVIDED that in the event the offending provisions are the inclusion of
the Association as a party to this Deed and the consequential provisions of that
inclusion then the agreements, representations and warranties therein contained
shall be attributed to, and be taken to have always been attributed to, the
Native Title Holders; and
(q) Any term or expression used herein which is defined in either the
Petroleum Act or the Native Title Act has the same meaning as in that
legislation.
1.2 In this Deed, headings are for convenience of reference and do not
affect the interpretation of this Deed.
2. DEFINITIONS
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2.1 In this Deed and in the Recitals and the Schedules and the Annexures to
the Schedules unless the context otherwise requires:
"APPLICABLE LAW" means every law and regulation (whether of the Commonwealth or
of the State) from time to time in operation in the State which is applicable to
a party including any such laws relating to native title, mining, the
environment, or Aboriginal heritage;
"ASSOCIATED ACTIVITIES LICENCE" means a licence authorising anything that is
reasonably necessary for, or incidental to, carrying on Regulated Activities in
the area of the PEL, PRL or PPL;
"ASSOCIATION" means the Body Corporate representing the Native Title Holders;
"BODY CORPORATE" means an Aboriginal Corporation incorporated pursuant to the
Aboriginal Councils and Associations Act 1976 (Cth) or the Corporations
(Aboriginal and Torres Strait Islander) Act 2006 (Cth) or a Prescribed Body
Corporate for the purposes of section 57(2) of the Native Title Act and which
comprises the Native Title Holders;
"COMMENCEMENT DAY" means the date of this Deed or another date agreed in writing
by the parties;
"COMPANY" means the party to this Deed so described, being the applicant for or
assignee of the Licence/s;
"DEED" means this deed and includes the Recitals, Schedules and Annexures to the
Schedules;
"DETERMINED LAND" means the area of land and any waters the subject of the
Native Title Determination as amended from time to time;
"ESSENTIAL TERM" means those terms in clauses 7.1, 8.1, 8.2, 8.3, 17.3, of this
Deed and in clauses 7, 8.7, 88, 9.6, 13, 15.1, 15.3 and 15.4 of Schedule 4;
"LICENCE" means any licence able to be issued under the Petroleum Act as amended
from time to time;
"LICENCE APPLICATION" means the application for a Licence under the Petroleum
Act including the exploration licence application further described in Schedule
1;
"LICENCE AREA" means that part of the land and any waters comprising part of the
Determined Land and the subject of a Licence Application and subsequent to the
grant of the Licence/s the area for the time being the subject of a Licence
PROVIDED that, where at any time part of such area ceases to be the subject of a
Licence, that area thereupon ceases to form a part of the Licence Area;
"MAXIMUM ADMINISTRATION FEE" means the maximum administration fee specified in
clause 7.5;
"MINISTER" means the Minister responsible for the grant of a Licence pursuant to
the Petroleum Act;
"NATIVE TITLE ACT" means the Native Title Act 1993 (Commonwealth);
"NATIVE TITLE DETERMINATION" means the Determination of Native Title made in the
Federal Court of Australia in Federal Court file number SAD 6017 of 1998 by
consent of the parties thereto on 1 May 2012;
"NATIVE TITLE HOLDERS" has the same meaning as in the Native Title Act;
"NEGOTIATION PARTIES" means the State, the Native Title Holders and the Company
in accordance with section 30A of the Native Title Act;
"OTHER CLAIMANT LAND" means land, which at the time of date of this Deed is
subject to a registered Native Title claim or Native Title Determination by a
party other than the Native Title Holders and which land affects the Licence/s
or any part of them and "OTHER CLAIMANT" means the relevant holder or applicant
in respect of the Other Claimant Land;
"PEL/S" means the proposed petroleum exploration licence/s as described in
Schedule 1 applied for by the Company pursuant to the Petroleum Act as renewed,
extended, substituted or varied from time to time;
"PETROLEUM ACT" means the Petroleum and Geothermal Energy Act 2000 (SA);
"PPL" means a petroleum production licence granted pursuant to the Petroleum
Act;
"PRELIMINARY SURVEY LICENCE" means a licence issued under the Petroleum Act
authorising the licensee to carry out a survey, environmental evaluation, or
other form of assessment preparatory to the carrying out of Regulated Activities
in the Licence Area;
"PRL" means a petroleum retention licence granted pursuant to the Petroleum Act;
"PROJECT" means all operations proposed or which may be undertaken by the
Company or its contractors relating or incidental to the activities conducted or
authorised under the Licence/s including (where the context requires) any PPL/s
emanating from the PEL/s granted in terms of this Deed and any Subsequent
licence/s so authorised;
"REGISTERED NATIVE TITLE CLAIMANTS" has the same meaning as in the Native Title
Act;
"REGULATED ACTIVITY" has the same meaning as in the Petroleum Act; and
"SUBSEQUENT LICENCE" means the grant within the Licence Area of any:
(a) PPL (that is not already authorised under this Deed);
(b) Associated Activities Licence;
(c) PRL;
(d) Easement for pipeline purposes;
(e) Preliminary Survey Licence;
(f) Speculative Survey Licence; or
(g) other authority able to be lawfully granted to the Company where the
Company is the holder of a PEL or PPL authorised by this Deed at the time of the
Licence Application, but excludes any authority authorising the geosequestration
of carbon dioxide outside of normal petroleum operations or any activities
associated with Geothermal energy.
3. COMMENCEMENT AND TERM
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3.1 This Deed commences on the Commencement Day.
3.2 Subject to any provision of this Deed to the contrary, this Deed will
terminate on the completion of the Project.
3.3 This Deed shall not terminate in the event of a breach, but the parties
may avail themselves of all other remedies available at law.
4. AUTHORITY TO ENTER INTO DEED
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4.1 The Native Title Holders represent and warrant that:
(a) they have obtained all necessary authorisations required to be obtained
by them to enter into this Deed; and
(b) this Deed is valid and binding and enforceable in accordance with its
terms against them and all those persons on whose behalf Native Title is held.
4.2 The Negotiation Parties having negotiated in good faith agree, for the
better management of interaction between them hereafter and for the purpose of
more efficiently managing certain administrative functions under this Deed for
the benefit of the Native Title Holders as are more specifically set out in this
Deed, to include the Association as a party to this Deed.
4.3 The Association represents and warrants that:
(a) all necessary actions have been taken in accordance with its
constitution and by-laws to enter into this Deed; and
(b) this Deed is valid, binding and enforceable in accordance with its terms
against it.
5. THE LICENCE/S
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5.1 The Native Title Holders and the Association:
(a) agree to the grant of Licence/s by the Minister to the Company pursuant
to the Petroleum Act and to the Company exercising its rights and entitlements
and discharging its obligations under the Licence/s in accordance with and
subject to any conditions imposed by:
(1) the Petroleum Act;
(2) any Applicable Law; and
(3) this Deed;
(b) covenants not to lodge or make any objection to any grant of Licence/s
to the Company in respect to the Licence Area pursuant to the Petroleum Act
unless the Company is and remains in breach of an Essential Term;
5.2 The Negotiation Parties acknowledge that:
(a) the non-extinguishment principle, as defined in section 238 of the
Native Title Act, applies to the grant of any Licence, and to any work done
pursuant to any Licence;
(b) the grant of a Licence and any work done pursuant to a Licence affects
any native title rights and interests held by the Native Title Holders, if at
all, only to the extent necessary for the grant of the Licence and carrying out
work pursuant to the Licence; and
(c) this Deed is evidence of an agreement obtained for the purpose of
section 31(1)(b) of the Native Title Act.
5.3 The Company covenants with the other Negotiation Parties that it will
carry out petroleum activities under any Licence on the Licence Area in
accordance with:
(a) the Petroleum Act;
(b) all Applicable Law;
(c) the provisions of this Deed; and
(d) good petroleum industry practice.
6. NATIVE TITLE ACT
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6.1 Each of the Negotiation Parties acknowledges that all Negotiation
Parties have negotiated in good faith for the purposes of section 31(1)(b) of
the Native Title Act.
6.2 The State is authorised to provide a copy of this Deed to:
(a) the National Native Title Tribunal in accordance with section 41A of the
Native Title Act in order to satisfy section 28(1)(f) of the Native Title Act;
(b) the Minister in accordance with and to satisfy sections 112 and 115 of
the Petroleum Act and for inclusion on the public register established pursuant
to section 115 of the Petroleum Act; and
(c) the South Australian Parliament.
7. ADMINISTRATION PAYMENT
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7.1 For better facilitating the administration of this Deed, the Company
will pay to the Association the following administration payments on the terms
set out in this clause 7.
7.2 Where the Company holds a PEL that is renewable for one (1) further term
only, the annual administration fee payable for each PEL will be:
(a) twelve percent (12%) of the Maximum Administration Fee for each year of
the first five (5) year term; and
(b) and eight percent (8%) of the Maximum Administration Fee for each year
of the second five (5) year term.
7.3 Where the Company holds a PEL that is renewable for two (2) further
terms the annual administration fee payable for each PEL will be:
(a) twelve percent (12%) of the Maximum Administration Fee for each year of
the first five (5) year term; and
(b) four percent (4%) of the Maximum Administration Fee for each year of the
second and third five (5) year terms.
7.4 If a PEL is suspended pursuant to section 90 of the Petroleum Act:
(a) the State will give notice of the suspension to the Native Title Holders
by providing them with a duplicate copy of the notice of suspension at the same
time such notice is provided to the Company; and
(b) the anniversary date on which the annual payment would normally fall due
will be extended by the term of the suspension.
7.5 The Maximum Administration Fee per PEL will be one hundred and fifty
thousand dollars ($150,000).
7.6 The payments referred to in clauses 7.2 and 7.3 shall be adjusted
annually in accordance with any increase in the CPI (all groups) for Adelaide,
South Australia occurring in the twelve month period immediately prior to such
payment falling due.
7.7 The first payment shall be made within seven (7) days of receipt of a
tax invoice from the Association upon the grant of the PEL(s) to the Company.
7.8 Subject to clause 7.4, thereafter each annual payment shall be made
within seven (7) days following the anniversary of the date of grant of the
PEL(s).
7.9 Where a Licence Area is not entirely located within the Determined Land
each amount payable under this clause shall be calculated rateably in like
proportion as the Determined Land within the boundary of the Licence Area bears
to the whole of the Licence Area.
7.10 Should the proportion which the Determined Land bears to the Licence
Area change between the anniversary dates of the PEL, the amount payable
according to this clause will be adjusted and paid, refunded or credited (as the
case requires) within seven (7) days following the next anniversary of the date
of grant of the PEL(s).
7.11 Upon the expiry, surrender or relinquishment of the PEL(s) within the
Determined Land, the Company's obligation in respect of the payment of the
Administration Fee pursuant to this clause 7 shall cease in relation to that
PEL.
8. PRODUCTION PAYMENT
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8.1 The Company agrees:
(a) to pay from time to time to the Native Title Holders in further
consideration for the Native Title Holders entering into this Deed the amounts
calculated from time to time in accordance with the terms set out in Schedule 3;
and
(b) the payments the subject of this clause 8.1 shall be effected by the
Company paying those amounts to the State and the State shall accept those
payments for the purposes set out in the following paragraphs of this clause 8.
8.2 The Native Title Holders hereby request and direct the State to pay to
the Association the Native Title Holders' share of the monies received by the
State from the Company in accordance with clause 8.1 and the State agrees so to
do.
8.3 Each payment by the State shall be made:
(a) for and on behalf of the Company;
(b) within a reasonable time of receipt of the relevant monies in cleared
funds; and
(c) in full satisfaction and discharge of each respective obligation of the
Company arising under clause 8.1.
8.4 Each amount payable by the Company under this provision will be
calculated and paid in accordance with this provision unless and until an
alternative payment scheme is agreed pursuant to clause 8.5 of this clause 8.
8.5 In the event the method of calculation contained in the Petroleum Act as
at the date hereof is fundamentally changed so as to occasion a material
disadvantage to the State in the State's administration of clauses 8.2, 8.3 and
8.4, the Minister may give six (6) calendar months notice in writing to the
other parties of the Minister's desire to re-negotiate the method of collection
and distribution of monies in terms of this clause 8 in which case the parties
must promptly negotiate in good faith in an endeavour to agree an alternative
payment scheme acceptable to all the parties.
8.6 The receipt by the Association of a payment due under this clause shall
be a full and sufficient discharge to the Minister and to the Company for any
payments made to the Native Title Holders pursuant to clause 8.
8.7 Nothing in this clause is intended to impose on the State a duty to
invest any monies collected by the State for distribution to the Association.
8.8 The Native Title Holders and the Association agree that the compensation
entitlement comprising the monies payable by the Company pursuant to this Deed
are in full and final satisfaction of all liabilities, actions, determinations,
orders, claims or demands for compensation, damages, restitution, benefits or
loss whatsoever, whether arising under any State or Commonwealth statute or at
common law or equity or otherwise, which the Native Title Holders may now or in
the future have, or but for this Deed might have had, against the Company and/or
the State and/or their respective employees, officers, agents or contractors in
connection with any actual and/or potential extinguishment of, and/or effect or
impact on, any native title or claimed native title of the Native Title Holders
in consequence of or arising out of or in relation to the Licence/s and the
exercise of rights or the discharge of obligations by the Company under the
Licence/s ("COMPENSATION ENTITLEMENTS").
8.9 The Native Title Holders and the Association release the Company and the
State from, and acknowledge that this Deed may be pleaded as an absolute bar
against, all such Compensation Entitlements, liabilities, actions, claims or
demands.
8.10 The Native Title Holders and the Association will not make any
application or claim against the Company or the State or any other person in any
court, tribunal, commission or any other competent body, including the National
Native Title Tribunal for compensation, restitution, benefits, damages or any
other amount (whether to be held in trust under the Native Title Act or
otherwise) in connection with any such Compensation Entitlements, liabilities,
actions, claims or demands.
8.11 The provisions of clause 8.9and 8.10do not apply in relation to any
compensation claim arising by reason of a breach of this Deed.
9. ABORIGINAL HERITAGE PROTECTION
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9.1 The Company, the Native Title Holders and the Association must comply
with the terms of Schedule 4 which provide:
(a) certain terms and conditions with which the Company has agreed to abide
by in the course of carrying out the Project on the Licence Area; and
(b) the methodology for the preservation and protection of Areas of
Significance.
9.2 The Company's obligations under Schedule 4 are not dependent upon the
Native Title Holders establishing native title over the Licence Area or
obtaining a determination of native title.
10. STATE NOT LIABLE FOR SCHEDULE 4 PROVISIONS
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The Company, the Native Title Holders and the Association acknowledge that
neither the State nor its officers, employees, or agents have any obligations or
liability whatsoever in connection with the rights and obligations of the
Company, the Association or the Native Title Holders pursuant to Schedule 4.
11. DEED NOT CONDITION OF GRANT
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The provisions of this Deed (other than the obligations of the Company and of
the State contained in clause 8) are not terms of the grant of a Licence under
the Petroleum Act.
12. ENVIRONMENTAL PROTECTION AND REHABILITATION
The Company will comply with the environmental protection procedures required by
all Applicable Law or agreed protocols relevant to its activities in connection
with the Licence/s.
13. ASSIGNMENT
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13.1 Subject to clause 13.2, the Company may at its absolute discretion
assign, transfer or novate the whole or part of its interests in this Deed.
13.2 If the Company assigns, transfers the whole or part of an interest in a
Licence, the Company will procure that the party thereby acquiring that interest
in the Licence enters into a deed of assumption in substantially the same form
as the draft deed contained in Schedule 5 of this Deed whereby the incoming
party covenants to assume the obligations of the Company with regard to the
other parties, and to be bound by the terms and conditions of this Deed as if it
were a party to this Deed to the extent of the interest so acquired by the
incoming party, and the Company will be released to the same extent of the
interest so acquired by the incoming party.
13.3 In the event that a Body Corporate is incorporated in substitution for
the Association ("NEW BODY CORPORATE"), the Native Title Holders shall procure
that the New Body Corporate immediately upon its incorporation, execute a Deed
Poll, in a form reasonably acceptable to the Company and the State, covenanting
to be bound by and to assume the obligations of the Association as if the New
Body Corporate were named as a Party to this Deed.
13.4 In the event that a Body Corporate other than the Association is
notified to the Federal Court of Australia as the Prescribed Body Corporate for
the purposes of section 57(2) of the Native Title Act then:
(a) the Native Title Holders and the Association must use their respective
best endeavours to ensure that the Prescribed Body Corporate becomes a party to
this Deed in place of the Native Title Holders and the Association and assumes
the rights and obligations of the Native Title Holders and of the Association
under this Deed;
(b) the parties (other than the Native Title Holders) to this Deed consent
to the Prescribed Body Corporate becoming a party to this Deed and assuming the
rights and obligations of the Native Title Holders and of the Association;
(c) each of the parties to this Deed must sign such documents and do such
things as are necessary to give effect to the provisions of this clause.
13.5 Nothing in this Deed obviates any statutory requirement for prior
approval of the Minister in relation to any assignment, transfer or novation.
14. NOTICES
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14.1 Subject to any other provision of this Deed any notice, request,
consent, proposal, or other communication must be in writing and signed (except
where notice by email is used, in which case an electronic signoff is
acceptable) by the person giving it and shall be addressed as follows:
The Minister for Mineral Resources and Energy
c/- The Director, Petroleum & Geothermal Group
Primary Industry and Resources
Level 7, 101 Grenfell Street
Adelaide SA 5000
Email address: Dmitre.petroleum@sa.gov.au
Telephone number: +61 8 8463 3024
Facsimile number: +61 8 8463 3202
The State's address:
Discovery Energy SA Ltd
C/-Discovery Energy Corp.
Suite 1700,
One Riverway Drive
Houston, Texas, 77056 USA
Email address: mdd@discoveryenergy.com
Telephone number: +1 713 594-9348
Facsimile number: +1 713 622-1937
with copy to:
Discovery Energy SA Ltd
Level 8, 350 Collins Street
Melbourne VIC 3000
Australia
Company's address:
c/- Camatta Lempens Pty Ltd Solicitors,
345 King William Street Adelaide SA 5000
Email address: Skenny@camattalempens.com.au
Telephone number: +61 8 8410 0211
Facsimile number: +61 8 8410 0566
Dieri Registered Native Title Holders address:
PO Box 607
Port Augusta
South Australia 5700
Email address:
Telephone number: +61 8 8642 2638
Facsimile:
The Association's address:
14.2 In the event that any party changes its address for notices that party
must advise the other parties in writing within seven (7) days of its new
address, and from that time all parties must address any notices to the new
address.
14.3 To facilitate the giving of notice, the Native Title Holders shall give
written notice within 7 days of the change in particulars or address of the
Association to the State and the Company.
14.4 A notice sent by mail will be deemed received by the party to whom it
is addressed on the next Business Day following its posting. Notices
transmitted by facsimile or electronic mail are deemed delivered on the day of
transmission subject to confirmation of complete transmission.
15. GOVERNING LAW
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This Deed is governed by the laws of and applying in the State of South
Australia and each party submits to the non-exclusive jurisdiction of the courts
of the Commonwealth of Australia and of the said State and courts competent to
hear appeals therefrom. The parties agree that any appeals from the courts of
the Commonwealth of Australia will be filed in the South Australian District
Registry of the Federal Court of Australia.
16. COUNTERPARTS
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This Deed may be executed in any number of counterparts and all of those
counterparts taken together constitute one and the same instrument.
17. SIGNING FEE AND GENERAL
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17.1 Each party agrees, at its own expense, on the request of another party,
to do everything reasonably necessary to give effect to this Deed and the
matters contemplated by it.
17.2 The Company will contribute to the Native Title Holders' reasonable
legal and other costs and expenses in connection with the preparation and
completion of this Deed. The State and the Company will pay their own legal and
other costs and expenses in connection with the preparation and completion of
this Deed, except for Stamp Duty (if any) which will be borne and paid by the
State.
17.3 Subject to clause 17.4, in consideration of the Native Title Holders
entering into this Deed and as a special non-recurrent payment (which includes
consideration for the grant of any Subsequent licence), the Company agrees to
pay the sum of seventy five thousand dollars ($75,000) to the Association for
each PEL within 7 Business Days after the Commencement Day.
17.4 Where a Licence Area is not entirely located within the Determined Area
the amount payable under clause 18.3 shall be calculated rateably in like
proportion as the Determined Area within the boundary of the Licence Area bears
to the whole of the Licence Area.
17.5 Where the payment to be made by the Company pursuant to this Deed
("PAYMENT") constitutes consideration for a taxable supply by the Association:
(a) the amount of the Payment shall be increased by, and the Company shall
pay, an additional amount calculated by multiplying the amount of the Payment by
the Prevailing GST Rate which is currently 10%; and
(b) the additional amount must be paid at the same time and in the same
manner as the Payment to which it relates
PROVIDED THAT the additional amount need not be paid unless and until the
Native Title Holders have given the Company a tax invoice sufficient to enable
the Company to claim any input tax credit to which it may be entitled in respect
of the taxable supply.
17.6 If an adjustment event has occurred in respect of a supply made
pursuant to or in connection with this Deed, the party that becomes aware of the
adjustment event agrees to notify the other party on becoming aware of the
adjustment event, and the relevant parties agree to take whatever steps are
necessary and make whatever adjustments are required to ensure that any GST or
additional GST on that supply or any refund on any GST (or part thereof) is paid
as soon as is practicable but no later than 21 days after the Association
becomes aware that the adjustment event has occurred.
17.7 The Association will forward to the Company an adjustment note in
respect of a supply that is subject to an adjustment event covered by clause
17.6. Such adjustment note will be issued and sent no later than twenty-one
(21) days after the Association becomes aware that the adjustment event has
occurred or refunds any GST (or part thereof) in respect of that supply.
17.8 Any disputes between the parties in relation to the operation or
interpretation of this clause shall be dealt with in accordance with clause 24
of Schedule 4.
17.9 The parties agree to make any changes that are required to this clause
to reflect any amendments made to the GST Act or a related Act or changes in the
interpretation of any of those Acts by the courts or the Commissioner of
Taxation.
17.10 In this clause 17:
(a) the expression "Prevailing GST Rate" in relation to a particular taxable
supply means the rate (expressed as a percentage of GST exclusive price) at
which GST is imposed on that taxable supply; and
(b) a word which is defined in the A New Tax System (Goods and Services Tax)
Act 1999 (Commonwealth) has the same meaning in this clause.
17.11 No modification, variation or amendment of this Deed shall be of any
force unless in writing and executed by each party. No waiver by a party of any
of the provisions of this Deed 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.
17.12 This Deed shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns.
17.13 The Association may appoint an agent to carry out its functions under
this Deed. At the request of any other party, the Association will provide
details in writing of the agent and the scope of his authority.
EXECUTED by the parties as a Deed.
THE COMMON SEAL of the MINISTER )
FOR MINERAL RESOURCES AND )
ENERGY was hereunto affixed in )
the presence of )
-----------------------------------
) THE HONOURABLE TOM KOUTSANTONIS,
) MINISTER FOR MINERAL RESOURCES AND ENERGY
Witness )
Name: )
Address: )
)
Occupation: )
Executed by Discovery Energy
SA Ltd ACN 158 204 052 in
accordance with section 127
of the Corporations Act in
the presence of: )
---------------------------
Director
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Director/Secretary
SIGNED by EDWARD LANDER
in the presence of:
----------------------------
Witness
----------------------------
Witness Full Name
)
SIGNED by RHONDA KENNEDY-GEPP
in the presence of:
----------------------------
Witness
----------------------------
Witness Full Name
SIGNED by SYLVIA STUART
in the presence of:
----------------------------
Witness
----------------------------
Witness Full Name
SIGNED by IRENE KEMP
in the presence of:
----------------------------
Witness
---------------------------
Witness Full Name
SIGNED by DAVID MUNGERANNIE
in the presence of:
--------------------------
Witness
--------------------------
Witness Full Name
THE COMMON SEAL OF THE )
ASSOCIATION was hereunto affixed in )
accordance with its constitution )
In the presence of )
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Member
Print name:
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Member
Print name:
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Member
Print name:
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